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503b84cb-87ae-401c-b057-ae177e7d698b | Branch v. SouthTrust Bank of Dothan, NA | 514 So. 2d 1373 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1373 (1987)
A.G. BRANCH
v.
SOUTHTRUST BANK OF DOTHAN, N.A.
86-859.
Supreme Court of Alabama.
October 2, 1987.
Richard H. Ramsey III, Dothan, for appellant.
W. Davis Malone III of Farmer & Farmer, Dothan, for appellee.
STEAGALL, Justice.
SouthTrust Bank of Dothan, N.A. ("SouthTrust") filed a complaint against defendants A.G. Branch and Clint Owens in the Houston County Circuit Court, alleging default by Branch and Owens on a promissory note. A default judgment was entered against Owens, and the court entered a Rule 54(b), A.R.Civ.P., certification of finality on July 3, 1986. On June 13, 1986, Branch filed an answer to SouthTrust's complaint and a cross-claim against Owens. On July 10, 1986, SouthTrust filed a motion for summary judgment against Branch. Subsequently, on July 16, 1986, Branch filed an amended answer and a counterclaim against SouthTrust. In his counterclaim, Branch asserted that SouthTrust had represented to him that it would hold certain real property as security for a loan that SouthTrust was soliciting Branch to "endorse." Branch further asserted that he relied on the representations of SouthTrust in signing the note, later discovering that SouthTrust released part of the property from its mortgage without his knowledge or consent. In response to SouthTrust's motion for summary judgment, Branch submitted his affidavit, which repeats a portion of the allegations of his counterclaim.
On August 5, 1986, SouthTrust filed an amended motion for summary judgment, seeking summary judgment on Branch's counterclaim as well as on its complaint. The trial court entered a partial summary judgment in favor of SouthTrust on its complaint against Branch, but denied the summary judgment on Branch's counterclaim. On January 15, 1987, the trial court made a Rule 54(b) certification of finality as to that partial summary judgment, expressly finding no just reason for delay.
*1374 Branch appeals, claiming that the summary judgment against him was improper. Alternatively, Branch asserts that the trial court abused its discretion by making its partial summary judgment a final judgment.
Rule 54(b), A.R.Civ.P., provides a means of making final "an order which does not adjudicate the entire case but as to which there is no just reason for delay in the attachment of finality." Foster v. Greer & Sons, Inc., 446 So. 2d 605, 609 (Ala.1984). "Rule 54(b) certifications should be granted only in exceptional cases and `should not be entered routinely or as a courtesy or accommodation to counsel.' Page v. Preisser, 585 F.2d 336, 339 (8th Cir.1978)." Foster, 446 So. 2d at 610.
Rule 54(b) is properly applied in a situation where the claim and the counterclaim present more than one claim for relief, either of which could have been separately enforced. Cates v. Bush, 293 Ala. 535, 307 So. 2d 6 (1975). Under "appropriate facts," a partial summary judgment on an original claim may be finally adjudicated pursuant to Rule 54(b), leaving a counterclaim undecided so that the parties can further litigate the issues presented by the counterclaim. Pate v. Merchants National Bank of Mobile, 409 So. 2d 797, 798 (Ala.1982). In Pate, a bank filed suit against a promissor and individual guarantors following default on a promissory note. After the bank filed a motion for summary judgment, the defendants filed an amended answer to the bank's complaint, including a counterclaim by one of the defendants. The counterclaim alleged that the bank had wrongfully converted funds deposited in that defendant's checking account. The Pate Court affirmed the trial court's entry of final judgment pursuant to Rule 54(b) in favor of the bank on its motion for summary judgment, leaving the counterclaim undecided and subject to further litigation. Finding that the bank's claim on the note established one claim and that the defendant's counterclaim for conversion of checking account funds formed a separate claim, the Pate Court held that the case "presented the very facts that Rule 54(b) was intended to cover, and the trial judge certainly did not abuse his discretion by applying the rule to it." Pate, supra, at 800.
The facts in this case, however, do not present the type of situation that Rule 54(b) was intended to cover. The counterclaim asserted by Branch is based upon an alleged fraudulent representation by an agent of SouthTrust upon which Branch claims he relied in executing the promissory note. It therefore appears that the issues in the two claims in this case are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results. We must conclude, therefore, that in the interest of justice, the claims should not be adjudicated separately.
The certification of finality under Rule 54(b) is set aside and the case is remanded to the circuit court.
CERTIFICATION SET ASIDE; REMANDED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | October 2, 1987 |
b22c857f-f861-4793-992c-d1856d693a5e | Mims v. Alabama Power Co. | 77 So. 2d 648 | N/A | Alabama | Alabama Supreme Court | 77 So. 2d 648 (1955)
Glennle T. MIMS
v.
ALABAMA POWER COMPANY et al.
5 Div. 594.
Supreme Court of Alabama.
January 20, 1955.
*649 Karl C. Harrison, Columbiana, Glen T. Bashore, Clanton, for cross-appellants.
Martin & Blakey, Alvin W. Vogtle, Jr., Birmingham, for appellee Alabama Power Co.
*650 Grady Reynolds, Reynolds & Reynolds, Clanton, for cross-appellee O. L. Mims.
MERRILL, Justice.
This is an appeal from a decree establishing a disputed boundary line, which was the relief prayed for in the cross bill of the appellee, Alabama Power Company. The appellant, Mrs. Glennie T. Mims, was permitted to intervene subsequent to the rendition of the final decree for the purposes of appealing to this court.
On August 16, 1941, the respondents Thompson and Smith purchased the timber on 259 acres of land west of the Coosa River including part of the NE¼ of Section 25, Township 23 N, Range 15 E in Chilton County from complainant O. L. Mims, and gave a mortgage to him for $500, the unpaid balance of the purchase price. On December 9, 1941, O. L. Mims filed the original bill in this cause to foreclose the mortgage. Thompson and Smith answered that O. L. Mims had pointed out certain lands to them as belonging to him and being bounded on the north by Yellow Leaf Creek, but the Power Company had notified them that it owned lands south of Yellow Leaf Creek and that they had cut timber belonging to the Power Company; that they deposited $279.00 in Peoples Savings Bank of Clanton to be paid to O. L. Mims when he secured a release from the Power Company. They further asked that the Power Company be made a party to the proceeding so it could be determined what amount of money was due O. L. Mims and the Power Company for the timber cut off the lands in dispute.
The answer and cross bill of the Power Company alleged that the line in dispute was the line between Sections 24 and 25; that it owned the fractional S½ of the fractional SE¼ of Section 24 and O. L. Mims owned the property immediately south, to-wit: part of the NE¼ of Section 25, and that the correct boundary line between the two sections was 1339 feet south of the point where Yellow Leaf Creek empties into the Coosa River, and 903.8 feet south of the point where Yellow Leaf Creek intersects the west line of the SW¼ of fractional SE½ of Section 24. (Yellow Leaf Creek flows in an easterly direction across the S½ of S½ of Fractional Section 24.) In its cross bill the Power Company prayed that the court settle the boundary line dispute.
O. L. Mims answered the cross bill, admitting that the Coosa River was the eastern boundary of Sections 24 and 25, and that the Power Company had purchased its lands in 1912 from one W. R. Mims and that G. D. Mims, the father of O. L. Mims was the predecessor in title to him, O. L. Mims. He averred that Yellow Leaf Creek ran along the section line and was the line between Sections 24 and 25; but he claimed in the alternative that W. R. Mims and G. D. Mims had agreed in 1900 that the creek would be the dividing line between the sections and each had been in the open, notorious, adverse and hostile possession of the lands on the north and south sides of Yellow Leaf Creek, respectively, for more than 20 years, and therefore the Power Company owned only that land north of the creek and he owned the lands to the south of it. He later filed an amendment showing that on September 16, 1947, he sold his lands immediately south of the Power Company lands to Glennie T. Mims, but that the Power Company was still seeking to recover a strip of land approximately 900 feet wide, south of the Creek to which it was not entitled.
Testimony was taken at various intervals during the eleven years of litigation but after submission in June 1952 the court rendered a final decree in July 1952, fixing the boundary line as contended for by the Power Company. It further decreed that O. L. Mims was entitled to recover of Thompson and Smith $166.80 as the balance due on the mortgage together with interest at six percent from September 1, 1941, to the date of the decree and a solicitor's fee to be paid out of the fund of $279 which had been deposited in the bank. The Power Company had waived any claim for damages for the timber cut and attorneys' fees.
*651 Subsequent to the rendition of the final decree, appellant Glennie T. Mims was allowed to intervene upon allegation and proof that she had become, during the pendency of the cause, owner of all the property previously belonging to O. L. Mims. We have held that a final decree is not a bar to a subsequent petition to intervene and such a petition is the appropriate method for becoming a party to the cause for the purpose of appealing. Ex parte Ide, 228 Ala. 452, 153 So. 887.
Our recent case of McNeil v. Hadden, Ala., 76 So. 2d 160, not announced when this case was submitted, is in point as to several questions presented.
The third, sixth and eighth assignments of error are to the effect that the trial court erred in denying complainant's application for rehearing. The decree denying the rehearing is not subject to review on this appeal. McNeil v. Hadden, supra.
All other argued assignments of error assert that the trial court erred in establishing the boundary line at the location described in the decree, i. e., approximately 1000 feet south of Yellow Leaf Creek.
The first question for our determination is the location of the section line between Sections 24 and 25. In this state all disputes as to lines of sections and subdivisions thereof are to be governed by the United States Survey and located by reference to the original government survey. Taylor v. Fomby, 116 Ala. 621, 22 So. 910; Billingsley v. Bates, 30 Ala. 376.
The evidence was overwhelmingly convincing that the line dividing Sections 24 and 25 lay south of Yellow Leaf Creek and that the line established by the court agreed with the original government survey. "And while the boundary line between adjacent landowners may be fixed and changed by agreement or by adverse possession, they cannot relocate a section line as surveyed by the government surveyors." McNeil v. Hadden, supra [76 So. 2d 162].
That brings us to the contention that the predecessors in title of the Power Company and O. L. Mims had agreed to make Yellow Leaf Creek the line between their properties in 1900 and that G. D. Mims, predecessor in title of O. L. Mims, had acquired title to that disputed part of Section 24 lying south of the creek by adverse possession. This contention can avail appellant nothing. It is agreed that the Power Company has paper title to the lands in Section 24 and appellant has paper title to the adjacent lands in Section 25. Therefore, O. L. Mims and his successor cannot tack on any adverse possession of O. L. Mims' predecessor in title, because their deeds describe only lands in Section 25, and even though title to the land in Section 24 south of the creek may have been in O. L. Mims' predecessor, it could pass to O. L. Mims "only by a conveyance wherein the said strip is sufficiently described or by the status of adverse possession for the required length of time" by O. L. Mims subsequent to the conveyance from his predecessor. McNeil v. Hadden, supra, and cases cited therein.
Appellant's next contention is that O. L. Mims acquired title to the lands in Section 24 south of Yellow Leaf Creek by adverse possession. In Spradling v. May, 259 Ala. 10, 65 So. 2d 494, 498, we said:
The evidence to support this contention falls far short of that required to prove adverse possession. O. L. Mims lived outside of Chilton County from 1919, two years after he acquired title to the lands in Section 25, until 1951, and his claim of adverse possession had to be based on the acts of his tenants. We are convinced from the evidence that the acts of these parties are not sufficient to show possession against the true owner so as to ripen into title by adverse possession.
The cross appellants, Thompson & Smith, assign as error that part of the decree which rendered a judgment against them for $166.80, the balance due on the note with interest at six percent thereon from the first of September, 1941, to the date of the decree. Another cross assignment of error is the allowance by the trial court of an attorney's fee of $125 to the solicitor for O. L. Mims to be paid out of the $279.00 deposited with the bank by Thompson & Smith. This $279 has been the subject of a garnishment proceeding by O. L. Mims in this cause. The other cross assignment of error is the trial court's failure to allow an attorney's fee to the attorneys of record of Thompson & Smith.
The cross assignments of error relating to the judgment of $166.80 and the awarding of the solicitor's fee to the attorney of O. L. Mims are not argued in brief and are, therefore, waived. Morgan v. Cherokee County Board of Education, 257 Ala. 201, 58 So. 2d 134; Propst v. Brown, 250 Ala. 282, 34 So. 2d 497; Wetzel v. Hobbs, 249 Ala. 434, 31 So. 2d 639.
The question of the propriety of the award of interest in this case is controlled by the provisions of Code of 1940, Title 7, § 1012. The decree provided that the interest was to be paid from the $279 on deposit with the garnishee, the Peoples Savings Bank of Clanton. The record does not reveal that any effort was made on the part of the bank as garnishee to avail itself of the provisions of § 1012 and we conclude that the trial court correctly allowed interest on the judgment of $166.80. Murphy v. Merchants National Bank of Mobile, 240 Ala. 688, 200 So. 894.
Attorneys for the cross appellant insist that they are entitled to a fee for their services for filing "their bill of interpleader" under Equity Rule 36, Code 1940, Tit. 7 Appendix. However, we do not construe the answer and position taken by Thompson & Smith as that of a disinterested stakeholder, because they did not pay the money into court, but attached a condition that Mims must secure a release from the Alabama Power Company before the Bank would be authorized to pay the money to him; they denied all the claims of the Power Company to the land in question and throughout the cause they were in the position of defending the Power Company's claim for damages in the amount of $250 for the cutting of the timber.
Clearly they were not mere interpleaders in this action and their attorneys have no claim for fees under Equity Rule 36. Pratt v. First National Bank of Fayette, 243 Ala. 257, 9 So. 2d 744; First National Bank of Mobile v. Burch, 237 Ala. 680, 188 So. 859; Riddick v. American Employers Ins. Co., 236 Ala. 323, 182 So. 45. A presumption exists in favor of rulings of the trial court fixing attorneys' fees and such rulings will not be set aside unless abuse of discretion is apparent. King v. Keith, 257 Ala. 463, 60 So. 2d 47.
*653 The decree of the trial court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 20, 1955 |
4f0cc78b-f300-407e-ab9b-6fe3d2bf9328 | SOUTHERN LIFE AND HEALTH INS. v. Smith | 518 So. 2d 77 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 77 (1987)
SOUTHERN LIFE AND HEALTH INSURANCE COMPANY
v.
Robert C. SMITH, Jr.
Robert C. SMITH, Jr.
v.
SOUTHERN LIFE AND HEALTH INSURANCE COMPANY.
86-71, 86-97.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied December 4, 1987.
*78 Jack Corbitt, Ozark, and Kenneth E. Little, Vice Pres. & Gen. Counsel of Southern Life & Health Ins. Co. and Ollie L. Blan, Jr. of Spain, Gillon, Tate, Grooms & Blan, Birmingham, for appellant/cross-appellee.
Kenneth W. Quattlebaum of Brogden & Quattlebaum, Ozark, for appellee/cross-appellant.
Rehearing Denied in 86-71 December 4, 1987.
HOUSTON, Justice.
This is a fraud case. The jury awarded Robert C. Smith, Jr., $30,000 in compensatory damages, and $35,000 in punitive damages. The trial court remitted all but $86.51 of the compensatory damages award, and the remittitur was accepted by Smith. Southern Life and Health Insurance Company appeals. Smith cross-appeals from the order remitting the compensatory damages.
The case was tried around the factual disputes of whether Smith and his wife told the agents of Southern Life that Smith's wife was pregnant or suspected that she was pregnant at the time of the taking of the application for hospital, medical, and surgical expense coverage; and whether the Southern Life agents told Smith and his wife that the policy would cover expenses connected with the pregnancy even though she was pregnant at the time of the taking of the application.
Smith paid a total premium of $86.51; $52.45 on August 12, 1982, the date of the application for the policy, and $34.06 on September 9, 1982, the date of the delivery of the policy. The policy that was delivered to Smith contained the following provision regarding maternity benefits:
In October, when an agent for Southern Life came to Smith to collect the second monthly premium, Smith informed the agent that Smith's wife was pregnant. At that time, the agent told Smith that the policy would not cover the expenses in connection with the pregnancy since the pregnancy had occurred before the application and issuance of the policy. No further premiums were paid on the policy, and the policy lapsed when the grace period expired. No claim for maternity benefits was made during the two months that the policy was in effect. A child was born to Smith and his wife approximately three months after the grace period expired. Smith never asked Southern Life to return the premium he had paid. The Smiths had coverage under the hospital, medical, and surgical expense policy for September and October 1982.
Smith was 20 years old at the time the application for the policy was taken. He had obtained his GED three years before this, and was employed as a roofer. Southern Life's agents were experienced insurance agents at the time the application was taken.
Southern Life first argues that reasonable or justifiable reliance, an essential element of actionable fraud, was not proven *79 with the requisite sufficiency to justify submitting this action to a jury.[1]
In Webb v. Renfrow, 453 So. 2d 724, 727 (Ala.1984), this Court set out the basic requirements of a fraud action in Alabama:
"Actionable fraud in Alabama consists of (1) a false representation, (2) concerning a material existing fact, (3) reliance by plaintiff upon that false representation, and (4) damage to plaintiff as a proximate result."
Our decisions have held that the third element of actionable fraud, reliance, must be a reasonable reliance and that where a party has reason to doubt the truth of a representation before he acts, he has no right to act thereon. MJM, Inc. v. Casualty Indemnity Exchange, 481 So. 2d 1136 (Ala.1985).
Justice Beatty, writing for a division of this Court in Halbrooks v. Jackson, 495 So. 2d 591, 592 (Ala.1986) wrote:
There have been many cases in which this Court has reached the conclusion that the alleged reliance of the plaintiff was not reasonable under the circumstances, or that the circumstances were such that the representation should have aroused suspicion as to its validity in the mind of a reasonable person. Under such circumstances, if a reasonably prudent person exercising ordinary care should have discovered the facts, the plaintiff was not allowed to recover, as a matter of law. First National Bank of Mobile v. Horner, 494 So. 2d 419 (Ala.1986); Kilpatrick v. Citibanc of Alabama/Andalusia, 494 So. 2d 39 (Ala. 1986); Rich Crest Homes v. Vaughn Place, Inc., 485 So. 2d 1123 (Ala.1986); Holman v. Joe Steele Realty, Inc., 485 So. 2d 1142 (Ala.1986); Taylor v. Moorman Mfg. Co., 475 So. 2d 1187 (Ala.1985); Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983). See also Cook v. Brown, 393 So. 2d 1016 (Ala.Civ.App.1981).
From Smith's testimony, it is obvious that he had a concern as to whether he could obtain hospital insurance that would cover the existing pregnancy of his wife. Smith says that he mentioned to the agents on the day the application was taken his suspicion that his wife was pregnant, and specifically asked them whether her pregnancy would be covered. Smith and his wife both testified that they saw the agents the day after the application was taken and asked whether the policy would cover her existing pregnancy. At that time, Smith had paid a $52.45 premium. No policy had been issued. There was no document that he could review to answer his question. Smith had previously obtained a disability policy from one of the same Southern Life agents with whom he was dealing. Smith was receiving disability payments under that policy at the time he applied for the hospital, medical, and surgical expense policy. There is evidence that Smith asked the person who should know, his insurance man (his "policy man"), if a certain risk was covered under a policy to be issued. It was a question of fact for the jury as to whether Smith's reliance at that time on the Southern Life agent's representation was reasonable. There is a scintilla of evidence of each element of actionable fraud.
Southern Life contends that Smith had no right to rely on the representations after the policy was delivered to him. We agree. On September 9, 1982, when the *80 policy was delivered, the Smiths were still concerned about whether the policy would cover Mrs. Smith's existing pregnancy. They asked the agents and were informed that it would. However, at that time the policy was available for Smith to examine. The first page of the policy showed that it provided "LIMITED BENEFIT HOSPITAL, MEDICAL, SURGICAL EXPENSE COVERAGE." The "MATERNITY BENEFITS" provision, which is set out in this opinion, was on the second page and clearly showed when maternity benefits would begin. There is nothing in the record to show that Smith could not have understood this language. There was nothing to keep Smith from reading the policy. He could have received a refund of all premiums if he had surrendered the policy within 10 days after the delivery of the policy. Smith's reliance on the agents' oral statement at the time the policy was delivered to him was not reasonable, as a matter of law. First National Bank of Mobile v. Horner, supra; Kilpatrick v. Citibanc of Alabama/Andalusia, supra; Rich Crest Homes v. Vaughn Place, Inc., supra; Holman v. Joe Steele Realty, Inc., supra; Taylor v. Moorman Mfg. Co., supra; Torres v. State Farm Fire & Cas. Co., supra.
However, this does not negate the fact that if Smith was damaged by the fraud there was a scintilla of evidence that actionable fraud had been committed by Southern Life on August 12 and 13.
Southern Life next contends that there was no evidence of the fourth element of actionable fraud, damage resulting from the misrepresentation. Smith allowed the policy to lapse. No hospital, medical, or surgical expense was incurred by Smith or his wife while the policy was in effect; and, therefore, no claim was made by Smith or his wife under the policy, and thus no claim was denied by Southern Life. There was some evidence of damage, though that damage may have been de minimis. Smith lost the use of $52.54 from August 12, 1982, to September 9, 1982. The trial court did not err in submitting the case to the jury or in denying Southern Life's motion for J.N.O.V. on the insufficiency of the evidence ground.
Southern Life contends that the following argument by Smith's counsel was improper and so highly inflammatory and prejudicial as to require a reversal:
In Gordon v. Nall, 379 So. 2d 585, 587 (Ala.1980), Justice Maddox wrote:
In Gordon v. Nall, plaintiffs' counsel argued: "It [an insurance company] doesn't have a heart, it doesn't have a soul, it has a board of directors." The trial court overruled the defendant's objection to this argument. This Court reversed and remanded, stating that the argument served no purpose but to inflame the jury and prejudice the party that happened to be a corporation, and that this Court could not, "in good conscience, conclude that the improper argument did not affect prejudicially the rights of the corporation to a fair and impartial trial."
In Chrysler Corp. v. Hassell, 291 Ala. 267, 280 So. 2d 102 (1973), the plaintiff's closing argument included the following:
The defendants objected, and the trial court sustained the objection. On unrelated grounds, this Court reversed. The Court did address the improper argument issue, however. We wrote:
"* * * One of the highest functions of our courts, organized as they are for the fair and impartial administration of justice, is `to prevent, as far as possible, all improper, extraneous influences from finding their way into the jury box.' Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130.
291 Ala. at 273, 280 So. 2d at 106-07.
Certainly the argument in the present case that a corporation has no "conscience" is as improper, as highly prejudicial, and as irrelevant to the issues in the case as was an argument that a corporation does not have a heart or a soul or fear of "Hell and Damnation in the hereafter." "Conscience" is defined in the American Heritage Dictionary of the English Language (1969) as "[t]he faculty of recognizing the distinction between right and wrong in regard to one's own conduct."
In the case at issue, Smith's argument was improper, highly prejudicial, and irrelevant to the issues and would have required us to reverse and remand if Southern Life's objection had been overruled.
However, the trial court sustained Southern Life's objection. Southern Life moved for a mistrial. The trial court denied the motion and offered to give the jury curative instructions. This was waived by Southern Life. The record shows no other action in regard to this "improper and highly prejudicial" argument.
One ground in the motion for a new trial was the failure of the trial court to grant Southern Life's motion for a mistrial. This was overruled.
Unless there is an adverse ruling by the trial court, improper argument of counsel is not ground for new trial and is not the subject of review on appeal. An exception is made where it can be shown that counsel's remarks were so grossly improper and highly prejudicial as to be beyond corrective action by the trial court. Alabama Power Co. v. Henderson, 342 So. 2d 323, 327 (Ala.1976); Hill v. Sherwood, 488 So. 2d 1357, 1359 (Ala.1986).
Seldom are the remarks held to be beyond corrective action by the trial court. See Hill v. Sherwood, supra (a judgment against defendant would bankrupt him and ruin his career); Harrison v. Woodley Square Apartments, Ltd., 421 So. 2d 101 (Ala.1982) (an incorrect statement that plaintiff had been hospitalized for an overdose of cocaine); Alabama Power Co. v. Henderson, supra ("You be the billing department, and for once you send [your] bill to the Power Company and make them pay for this human being that they have virtually destroyed"). In McLemore v. International Union, United Auto., Aircraft and Agr. Implement Workers of America, C.I.O., 264 Ala. 538, 88 So. 2d 170 (1956), this Court affirmed the trial court's grant of a new trial due to a blatant appeal to racial bias by an attorney in closing argument. We are of the opinion that the effect of the closing argument in the case at issue was more like that in Hill v. Sherwood; Harrison v. Woodley Square Apartments, Ltd.; and Alabama Power Co. v. Henderson, than like the argument in McLemore. Smith's counsel could have been chastised by the trial court in the presence of the jury for trying to prejudice the jury. The trial court could have explained to the jury that an act of commission or omission by a corporation is performed by human beings, who should have the faculty for recognizing the distinction between right and wrong in regard to their *82 conduct. The trial court could have then instructed the jury to disregard the prejudicial remark made by Smith's attorney, and asked if any member of the jury could not disregard that prejudicial remark. We are persuaded that such corrective action would have offset the effect of the prejudicial remark. The trial court offered to give some type of curative instruction in response to Southern Life's motion for a mistrial. Southern Life waived this.
We cannot hold that the trial court's denial of the motion for new trial on this ground was unjust and plainly erroneous. Harrison v. Woodley Square Apartments, Ltd., supra; Estis Trucking Co. v. Hammond, 387 So. 2d 768 (Ala.1980).
Southern Life's remaining issues involve the punitive damages aspect of the case. The jury awarded $35,000 in punitive damages. There was some evidence from which the jury could logically infer that the misrepresentations, which the jury found that agents of Southern Life made, were made with the intent to deceive. Therefore, under the law as it existed at the time this case was filed and tried, this was sufficient evidence to uphold an award of punitive damages. American Honda Motor Co. v. Boyd, 475 So. 2d 835 (Ala.1985), Allstate Enterprises, Inc. v. Alexander, 484 So. 2d 375 (Ala.1985).
Southern Life, in a most scholarly manner, argues that the punitive damages award is an excessive fine and is unconstitutional under the Eighth Amendment to the Constitution of the United States. This was not raised in the pleadings or the pre-trial order, nor was there an objection on this ground to the trial court's instructions on punitive damages. This issue was raised for the first time in a post-trial "motion for judgment notwithstanding the verdict or in the alternative for a new trial." We will not review questions that were not timely raised in the court below. Cooper v. Green, 359 So. 2d 377, 378-79 (Ala.1978).
Damages are excessive if they shock the judicial conscience or are so great as to indicate bias, passion, or prejudice. Village Toyota Co. v. Stewart, 433 So. 2d 1150 (Ala.1983). The punitive damages do not appear to be excessive under either standard. The facts were in dispute. The jury resolved this dispute in favor of Smith. While the harm that occurred in this case was slight, the harm likely to result from selling insurance coverage that will not be provided is great. Such conduct is reprehensible. It should be punished and deterred, and we cannot say that $35,000 is excessive.
The trial court entered the following order:
Smith accepted the remittitur, but cross-appealed after Southern Life appealed. We find no error in the action of the trial court in granting this remittitur.
AFFIRMED.
ALMON, BEATTY and ADAMS, JJ., concur.
MADDOX, J., concurs in the result.
*83 MADDOX, Justice (concurring in the result).
I concur in the affirmance of the judgment. While I am of the opinion that this Court could address the constitutional claims regarding the excessiveness of the verdict, even though presented here for the first time, and so stated my views in a dissenting opinion in Alabama Power Co. v. Cantrell, 507 So. 2d 1295 (Ala.1986), I would still affirm this particular judgment, because I do not believe it is "excessive." Consequently, I concur in the result reached in this case.
[1] The scintilla rule was the applicable sufficiency-of-evidence standard at the time this action was tried. Allstate Enterprises, Inc. v. Alexander, 484 So. 2d 375 (Ala.1985). | October 2, 1987 |
f0a424c9-a1f8-4f64-9058-be7cb70d581b | Ex Parte Southland Bank | 514 So. 2d 954 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 954 (1987)
Ex parte SOUTHLAND BANK, Successor to the Clayton Banking Company.
(Re Louise T. PHILLIPS (Johnson)
v.
The CLAYTON BANKING COMPANY, d/b/a Southland Bank, et al.)
86-864.
Supreme Court of Alabama.
September 18, 1987.
Joseph P. Borg of Capouano, Wampold, Prestwood & Sansone, Montgomery, and Nicholas J. Cervera of Cervera & Ralph, Troy, for petitioner.
James H. Weatherford, Jr., of Weatherford & Carmichael, Enterprise, for respondents.
TORBERT, Chief Justice.
This is a petition for a writ of mandamus directed to Judge Terry L. Butts of the Coffee County Circuit Court seeking, among other things, a transfer of this case from Coffee County to Barbour County. The writ is denied.
On review by mandamus, the Court must look only at those facts before the trial court. Ex parte Baker, 459 So. 2d 873 (Ala.1984). Our review of the record *955 reveals that no admissible evidence was offered in the trial court to support the motion to transfer. A writ of mandamus is not granted unless there is a clear showing of error in the trial court to the injury of the petitioner. Ex parte Slade, 382 So. 2d 1127 (Ala.1980). The petitioner has not satisfied its burden of proof.
The petitioner also alleges that the action should be dismissed because it is barred by the doctrine of res judicata and by the statute of limitations. These issues are not properly raised by writ of mandamus, because, to be entitled to the writ, the petitioner must show, among other things, a lack of other adequate remedy. Ex parte Thompson, 474 So. 2d 1091 (Ala.1985); Ross v. Luton, 456 So. 2d 249 (Ala. 1984). The fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal. See, e.g., Ex parte Temporary Placement Services, 508 So. 2d 275 (Ala.Civ.App.1987). The same holds true for the issue of res judicata. Therefore, the writ is denied.
WRIT DENIED.
MADDOX, JONES, BEATTY, ADAMS and STEAGALL, JJ., concur.
ALMON, J., not sitting. | September 18, 1987 |
be89a57c-6a09-46fd-8583-c55784c9435f | Ex Parte Jones | 519 So. 2d 589 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 589 (1987)
Ex parte Stephen Rodgers JONES.
(Re Stephen Rodgers Jones v. City of Daphne).
86-639.
Supreme Court of Alabama.
November 6, 1987.
James M. Byrd, Mobile, for petitioner.
*590 John David Whetstone, Bay Minette, for respondent.
ALMON, Justice.
The circuit court, sitting without a jury, adjudged the petitioner guilty of driving under the influence of alcohol. Petitioner appealed the judgment of conviction to the Court of Criminal Appeals and obtained a reversal of his conviction. Being unsatisfied with portions of the opinion and judgment of the Court of Criminal Appeals, 519 So. 2d 587, petitioner filed a petition for writ of certiorari that properly complied with Rule 39, A.R.A.P., including a Rule 39(k) requested statement of additional facts. This Court granted the petition and issued a writ of certiorari.
We have read the entire record of the trial proceedings and find no evidence whatsoever tending to establish when the offense was committed.
Harris v. State, 54 Ala.App. 10, 12, 304 So. 2d 252, 253 (1974), citing Calvert v. State, 26 Ala.App. 189, 155 So. 389 (1934).
Neither do we find sufficient evidence to establish that the offense occurred within the city limits or police jurisdiction of the City of Daphne. "Failure to prove venue is ground for reversal." Willcutt v. State, 284 Ala. 547, 550, 226 So. 2d 328, 330 (1969), citing Kimbell v. State, 165 Ala. 118, 51 So. 16 (1909).
Mayhall v. State, 22 Ala.App. 223, 225, 114 So. 361, 363 (1927), citing Walker v. State, 153 Ala. 31, 45 So. 640 (1908).
While the trial judge may have unintentionally been misled into concluding that the parties stipulated to the existence of a prima facie case, the record will not support that conclusion.
The judgment of the Court of Criminal Appeals reversing the judgment of the circuit court is correct; however, that judgment was incorrect in remanding this case, because, in view of the pronouncements herein made, the petitioner is due to be discharged. It is so ordered.
AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED FOR DEFENDANT.
All the Justices concur. | November 6, 1987 |
d8301acb-a923-44ee-8d47-378ef0451624 | Pike v. Southern Bell Telephone and Telegraph Co. | 81 So. 2d 254 | N/A | Alabama | Alabama Supreme Court | 81 So. 2d 254 (1955)
May PIKE
v.
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY.
6 Div. 470.
Supreme Court of Alabama.
March 24, 1955.
Rehearing Denied May 19, 1955.
Further Rehearing Denied June 23, 1955.
Gibson, Hewitt & Gibson, Birmingham, for appellant.
Edw. W. Smith and John A. Boykin, Jr., Atlanta, Ga., and Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
Copeland & Copeland, Gadsden, Jas. H. Willis, Birmingham, amici curiae.
MAYFIELD, Justice.
A statement of this case appears in the dissenting opinion. The primary question here for consideration is whether or not the appellee Telephone Company was justified in removing the appellant's telephone. The appellee's asserted justification of this act was that it had received notification from Eugene "Bull" Connor, Commissioner of Public Safety of the City of Birmingham, that this telephone was being used for "illegal purposes".
It is clear that the Telephone Company, like any other public utility, which is granted a monopoly, has a duty to serve the general public impartially, and without arbitrary discrimination. This right of service extends to every individual who complies with the reasonable rules of the Company. The subscriber is entitled to equal service and equal facilities, under equal conditions. 86 C.J.S., Tel. & Tel., Radio & Television, § 71, p. 83; City of Birmingham v. Southern Bell Telephone & Telegraph Co., 234 Ala. 526, 176 So. 301.
*255 It is equally clear that the Telephone Company may properly refuse to furnish its service for a purpose or business which is patently illegal or a public nuisance. But, mere suspicion that such service is desired for purposes contrary to the public interest will not justify refusal. 86 C.J.S., Tel. & Tel., Radio & Television, § 65, p. 80; Western Union Telegraph Company v. Ferguson, 57 Ind. 495.
In Andrews v. Chesapeake & Potomac Telephone Co., D.C., 83 F. Supp. 966, 968, 969, the defendant Telephone Company received a letter from the United States Attorney stating that the plaintiff (subscriber) was using his telephone in violation of the gambling statutes and requested that the telephone be discontinued. When the Telephone Company complied with the request of the United States Attorney, the subscriber brought a petition for injunctive relief. There the court said:
In the above cause, the tariff of the Telephone Company contained a provision that service could be discontinued if any law enforcement agency advised that it was being used, or will be used, in violation of law. Speaking of this tariff provision and the letter of the United States Attorney, the court said:
In the instant case, as far as the record reveals, there was not even a "tariff" of the telephone company to justify their discontinuance of this appellant's telephone service. We do not think this point controlling, however, and agree with the reasoning of the above case that the Telephone Company could not have adopted a valid tariff in this particular. Such a "tariff" would have been a denial of due process of law.
In that portion of the opinion in People v. Brophy, 49 Cal. App. 2d 15, 29, 30, 120 *256 P.2d 946, 954; dealing with whether receipt by the Telephone Company of a letter from the State Attorney General stating that Brophy was using his telephone in bookmaking and requesting its removal would constitute a defense in a suit by Brophy against the Telephone Company for removal of the telephone, the court said:
In Giordullo v. Cincinnati & Suburban Bell Telephone Co., Ohio Com.Pl., 71 N.E.2d 858, 859, 860, the plaintiff brought an action to recover damages for the withdrawal of telephone service from the plaintiff's premises and to compel defendant to restore plaintiff's service. In its answer the telephone company alleged that the Chief of Police had requested that plaintiff's telephone be removed claiming that he was using his telephone for bookmaking. On demurrer by plaintiff, the court said:
In Shillitani v. Valentine, 184 Misc. 77, 53 N.Y.S.2d 127, 131, 132, the petitioner sought a writ of mandamus to compel the restoration of telephone service. Petitioner's telephone had been removed by the police at the time of his arrest for bookmaking. On his acquittal of the charge, petitioner applied to the telephone company to have telephone service restored. The police department did not approve the restoration of his telephone and for that reason the company refused to restore it.
The holding of the court in granting the writ was, in part, as follows:
The appellate division modified the order of the trial court so as to direct a dismissal of the petition upon a finding that the petitioner was, in fact, using his telephone for criminal activities. 269 App.Div. 568, 56 N.Y.S.2d 210. On appeal to the Court of Appeals, the holding of the appellate division was affirmed, 296 N.Y. 161, 71 N.E.2d 450, 451. The court said in part:
Shillitani v. Valentine, supra, was followed in Whyte v. New York Telephone Co., Sup., 73 N.Y.S.2d 138, and in Dees Cigarette & Automatic Music Co., Inc., v. New York Telephone Co., 184 Misc. 269, 53 N.Y.S. 651, wherein the respondent Telephone Company was ordered to reinstall petitioners' telephones. In both cases, the Company had refused service on the request of the police department. We are aware that the courts of several jurisdictions have taken a contrary view; nevertheless, we are convinced that the rule enunciated in the foregoing cases is sound and should be followed by the courts of Alabama. The cases supporting the contrary view are ably collected in the dissenting opinion and require no further comment.
Upon its factual situation, the instant case is even weaker than the cases which we have heretofore reviewed. A contrary holding would be particularly disturbing when we consider the questions which are left unanswered by the Company's plea. This plea does not even allege that the appellant's telephone was, in fact, being used in a manner which would justify its removal. The allegation is merely that the appellee received notice from Eugene "Bull" Connor, Commissioner of Public Safety, and was thereby ordered to remove the telephone. The letter from Commissioner *258 Connor, which the company claims clothes them with immunity, merely states that the telephone is being used for "illegal purposes."
Attached to the letter to the Company from the Commissioner was a list which included remarks concerning one Louis Pikepresumably the husband of appellant. It was stated that Louis Pike "is a well-known lottery operator in the city." As was stated in the foregoing cases, the questionable character of the telephone subscriber is not justification for a Company, which holds a monopoly, to discontinue the service. Obviously, this principle is doubly applicable where both the character and the occupation of the person assailed is someone other than the subscriber.
"Criminal" and "illegal" are not interchangeable terms. While it is argued by the appellee that the "illegal" use referred to concerned bookmaking operations, such does not appear in the notice received by the Telephone Company. Stripped to its bare essentials, Commissioner Connor's letter makes two allegations against Louis Pike. First, that he "operates a negro beer joint". Regardless of whether such activity be laudable, it is not criminal or even "illegal". Secondly, that Pike operates the Joe Louis Lottery House and has at least three cases pending in the various courts. The "pendency" of a criminal case cannot be used as a predicate for punitive action under the American system. The present tendency and drift towards the Police State gives all free Americans pause. The unconstitutional and extra-judicial enlargement of coercive governmental power is a frightening and cancerous growth on our body politic. Once we assumed as axiomatic that a citizen was presumed innocent until proved guilty. The tendency of governments to shift the burden of proof to citizens to prove their innocence is indefensible and intolerable.
We are not able to glean from the bare conclusions set up in the letter of the Commissioner, whether it is claimed that the "illegal" use of the telephone was by the appellant, her husband, or a total stranger. From aught that was alleged in the plea, except for the conclusion of the Commissioner, no "illegal" use of any type was made of this telephone by any one.
The notice alleged to have been received by the Telephone Company was couched in the terms of a direct order from the Commissioner of Public Safety. What is the source of Mr. Connor's authority to issue such an order? We know of none. And we hold that none exists.
If we took a contrary view, it would naturally flow and follow that the telephone company would be justified in acting on the notice of any over-zealous law enforcement official who, without evidence, and on mere suspicion, is impressed with the bad character or occupation of a particular telephone subscriber. The letter from Commissioner Connor set up in the plea is no defense. It is the Telephone Company's burden to show that the use being made of the telephone did, in fact, justify its removal.
These depredations of a subscriber's legal right to telephone service constitute a denial of due process guaranteed by the Constitution of 1901, art. 1, § 6. The gratuitous and arbitrary action of a police official is no justification for an abridgement of this right. To hold that the Telephone Company is justified in discontinuing service by "order" of a police official would require judicial recognition of a police power which does not exist. The bald assertion of an executive officer, be he the Attorney General of the United States or a constable of some remote beat, cannot be accepted as a substitute for proof in the judicial process. No presumption arises as to the sufficiency of evidence based on a law enforcement officer's conclusions.
Appellee's plea No. 2 alleged no defense to the cause of action and the nisi prius court erred in overruling the challenging demurrer.
Reversed and remanded.
SIMPSON and STAKELY, JJ., concur.
*259 LAWSON, J., concurs in the result.
LIVINGSTON, C. J., and GOODWYN and Merrill, JJ., dissent.
GOODWYN, Justice (dissenting).
Appellant, plaintiff below, brought action at law against appellee claiming damages for cutting off or discontinuing her telephone service. As last amended, the complaint consisted of three counts. Count 1 charged appellee with "negligently" cutting off telephone service; count 2, with "wantonly" cutting off such service; and count 3, with "willfully, wantonly, maliciously, intentionally, and wrongfully" cutting off such service. Appellee's demurrer to the complaint, as last amended, was overruled. Thereupon appellee entered two pleas. The first was a plea of the general issue. Plea 2 was as follows:
"`April 2, 1951
"`Mr. C. L. Lott, District Manager,
"`Southern Bell Telephone & Telegraph Company,
"`Birmingham 3, Alabama
"`Dear Mr. Lott:
"`Sincerely yours,
"`/s/ C. L. Lott
"`District Manager.'
The appellant demurred to plea 2, assigning thirty-eight separate and several grounds. The demurrer being overruled, appellant moved for a non-suit, which was granted. This appeal presents for review the propriety of the action of the court in overruling the demurrer to plea 2.
As I see it, the question presented for decision is whether, under the facts averred in plea 2, appellee was justified in discontinuing appellant's telephone service. Specifically, the question is whether appellee, in removing appellant's telephone pursuant to the instructions from the Commissioner of Public Safety of the City of Birmingham, was justified in accepting the order of said Commissioner as reasonable cause to believe that the telephone was being used for an illegal purpose. Appellant's insistence is that appellee, as a public utility, must serve the public without discrimination and that she has been unjustly discriminated against by the discontinuance of her telephone service; that plea 2 does not show that either she or her husband personally used the telephone for illegal purposes nor that they had any notice or knowledge that it was being used for illegal purposes or that they permitted any one to use said telephone for illegal purposes. It is further contended that the discontinuance of service deprived her of her property without due process of law in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States.
The position taken by the Telephone Company is that the instructions from the Commissioner of Public Safety for removal of appellant's telephone because of its use, as stated in said instructions, for illegal purposes, constituted reasonable cause for the Company to believe the telephone was being illegally used, thus justifying its removal.
It does not appear that this question has heretofore been before this court. However, it has been dealt with in other jurisdictions, but not with unanimity in the decisions.
My research discloses that when the question has been considered in other jurisdictions, there has usually been involved the reasonableness of a statute, a rule of a state or federal regulatory body, or a rule of the public utility. It is apparent that our problem, as presented by the pleadings, is somewhat different. Here, no statute or rule is involved. The question, then, simply stated, is whether the Telephone Company, in the absence of a statute or rule on the subject, is justified in discontinuing service when requested to do so by a responsible law enforcement officer who represents to the Company that such service is being used for illegal purposes. (As I see it, the principle applicable here would likewise be applicable if a statute or rule were involved.) My view is that the Telephone Company is justified in relying on the representations of such law enforcement officer as to the illegal use of the service and, accordingly, should not be liable for damages when service is discontinued at the request of such officer.
It is generally held that a public utility, by reason of the very nature of its business, is obligated to furnish "its service or commodity to the general public, or that part of the public which it has undertaken to serve, without arbitrary discrimination." 73 C.J.S., Public Utilities, § 7 b, p. 999. But it cannot be required to furnish service, for illegal purposes. *261 52 Am.Jur., Telegraphs and Telephones, § 93, p. 123; Nichols, Public Utility Service and Discrimination, Chap. VII, § 9, p. 196. As thus stated in 52 Am.Jur., Telegraphs and Telephones, Cum.Supp. § 84.1:
In the light of these principles, is it not a reasonable and practicable rule of law which says that a utility is justified in discontinuing service when a responsible law enforcement officer notifies the utility that such service is being used for illegal purposes and requests that the service be discontinued because of such illegal use? I think so; and this conclusion finds support in the following cases, among others: McBride v. Western Union Tel. Co., 9 Cir., 1948, 171 F.2d 1, 3, 4; King v. Seamon, Fla., 1952, 59 So. 2d 859, 861; Dade County News Dealers Supply Co. v. Florida Railroad & Public Utilities Commission and Dade County News Dealers Supply Co. v. Southern Bell Tel. & Tel. Co., Fla., 1950, 48 So. 2d 89, 90; Hagerty v. Southern Bell Telephone & Telegraph Co., 1940, 145 Fla. 51, 199 So. 570; Dente v. New York Telephone Co., Sup., 1944, Westchester County, 55 N.Y.S.2d 688, 690, 691, 692; Application of Manfredonio, 1944, Westchester County, 183 Misc. 770, 52 N.Y.S.2d 392, 393; People ex rel. Restmeyer v. New York Telephone Co., 1916, 173 App.Div. 132, 159 N.Y.S. 369, 370.
In the case of McBride v. Western Union Tel. Co., supra [171 F.2d 3], appellant sought to compel the telegraph company to restore wire service to him. The company based its refusal to restore service on Federal Communication's Tariff Regulation 219(8) which provided as follows:
The court there said:
In Hagerty v. Southern Bell Telephone & Telegraph Co., supra, the Attorney General of the United States advised the telephone company that Hagerty was using the company's facilities to promote lottery schemes in Florida and elsewhere and demanded that the service be discontinued on pain of being held to account for aiding and conspiring in the violation of the Federal anti-lottery laws. The Attorney General of Florida also advised the telephone company that Hagerty "was using its telephone facilities to aid in the maintenance of gambling houses or in the promotion of gambling" contrary to the laws of Florida, and requested that the service be discontinued. In response to these demands, the telephone company notified Hagerty that service would be discontinued. Hagerty thereupon filed his bill in equity and secured a temporary restraining order directed to the company prohibiting it from discontinuing the service. The company filed its answer interposing as a defense its right to discontinue service because of the alleged violation of state and federal laws and the demand made on it by the state and federal prosecuting officers. The trial court upheld the answer of the telephone company. On appeal, the Florida Supreme Court has this to say [145 Fla. 51, 199 So. 571]:
In the later Florida cases of Dade County News Dealers Supply Co. v. Florida Railroad & Public Utilities Commission and Dade County News Dealers Supply Co. v. Southern Bell Tel. & Tel. Co., supra, the Supreme Court of that state held that the telephone company was warranted in discontinuing service to the News Dealers Supply Co. when notified to do so by the Florida Attorney General because such service was being used for unlawful purposes. There under consideration was Rule 1592 of the Commission which became effective on April 1, 1950. Said rule contained the following:
Pursuant to this rule, the telephone company notified the News Dealers Supply Co. that the Attorney General of Florida had demanded that all facilities furnished by the telephone company to said Supply Company be discontinued, and that, therefore, all such services would be terminated. A bill was filed and a temporary restraining order was issued to prevent the telephone company from interfering with the telephone service then being furnished. *263 On hearing in the trial court said restraining order was dissolved and the bill dismissed. On appeal, the Supreme Court of Florida said [48 So.2d 90]:
The opinion in King v. Seamon, supra, discloses that Rule 1592, considered in the Dade County News Dealers Supply Co. Cases, supra, was subsequently enacted into law. In construing such enactment, the court cited with approval the construction of the rule as announced in the Dade County News Dealers Supply Co. Cases, supra.
In Application of Manfredonio, supra, the petitioner's telephone service was discontinued and the telephone removed by the telephone company, acting upon request of the Mt. Vernon Police Department which informed the telephone company that the telephone was being used by petitioner for gambling and bookmaking. Petitioner brought suit for restoration of telephone service. The court said:
In the later case of Dente v. New York Telephone Co., supra [55 N.Y.S.2d 689], telephone service was discontinued by the telephone company "after it had received a letter from the Chief Inspector of the Mount Vernon Police Department, the purport of which was, that he had received information from the New York Police Department, with other information, which led him to believe that the telephone in question was being used for an unlawful purpose, to wit, bookmaking, and requested the respondent [telephone company] to forthwith discontinue the service, and not to reinstate the same without the approval of the Police Department." The court said:
In People ex rel. Restmeyer v. New York Telephone Co., supra, the proceeding was to require the telephone company to furnish telephone service to the relator. The telephone company had removed the telephone from relator's saloon upon complaint of the police authorities that the premises and telephone were being used by the relator in conducting a pool room for receiving and registering bets on horse racing. On the question of whether service should be restored, the court said as follows [173 App.Div. 132, 159 N.Y.S. 370]:
Although there is authority to the contrary, Andrews v. Chesapeake & Potomac Telephone Co., 1949, D.C.D.C., 83 F. Supp. 966, 968, 969; Giordullo v. Cincinnati & Suburban Bell Telephone Co., Ohio Com. Pl., 1946, 71 N.E.2d 858, 859; People v. Brophy, 1942, 49 Cal. App. 2d 15, 120 P.2d 946; Whyte v. New York Telephone Co., Sup., 1947, New York County, 73 N.Y.S.2d 138, 139; Shillitani v. Valentine, 1945, New York County, 184 Misc. 77, 53 N.Y.S.2d 127, 130, 131, 132, 134. I am persuaded that the principle approved in the line of cases hereinbefore discussed is fair, reasonable and practicable and, being in aid of law enforcement, accords with sound public policy. Therefore, I respectfully dissent from the majority holding. It is to be noted that appellant is not without recourse to have her right to telephone service judicially heard and determined. Code 1940, Tit. 48, §§ 57, 63, 79.
LIVINGSTON, C. J., and MERRILL, J., concur in the foregoing opinion.
On Rehearing.
MAYFIELD, Justice.
Counsel for the appellee insist with great vigor that Section 6 of the Constitution of Alabama 1901 affords no protection against an abuse of "due process of law" except in criminal cases. In support of this position they cite the holding of the Supreme Court of Rhode Island in Sepe v. Daneker, 76 R.I. 160, 68 A.2d 101, and Taglianetti v. New England Tel. & Tel. Co., R.I., 1954, 103 A.2d 67, construing a provision of the Rhode Island Constitution similar to art. 1, § 6 of the Alabama Constitution of 1901. Regardless of what position the Supreme Court of Rhode Island may have taken in the interpretation of their own Constitution, the Supreme Court of Alabama has consistently and repeatedly required due process of law in civil, as well as criminal cases. In the civil case of Almon v. Morgan County, 245 Ala. 241, 246, 16 So. 2d 511, 515, it was said:
In State ex rel. Steele v. Board of Education of Fairfield, 252 Ala. 254, 260, 40 So. 2d 689, 695, which was a petition for mandamus, this court, in speaking of an administrative hearing, said:
*266 In the case of Zeigler v. South & North Ala. R. R. Company, 58 Ala. 594, 598, 599, Justice Stone said:
The cases of Wise v. Miller, 215 Ala. 660, 111 So. 913; Life & Casualty Ins. Co. of Tennessee v. Womack, 228 Ala. 70, 151 So. 880; Byars v. Town of Boaz, 229 Ala. 22, 155 So. 383; Ridge v. State ex rel. Tate, 206 Ala. 349, 89 So. 742, are all civil cases. In each of these cases, in discussing whether there was or was not a denial of due process, the court assumed as axiomatic that due process of law in civil cases is constitutionally guaranteed in Alabama. In our most recent pronouncement on this subject, in the case of Phillips v. Hinkle, Ala., 78 So. 2d 800, 804, decided March 10, 1955, this court quoted the language in Dearborn v. Johnson, 234 Ala. 84, 173 So. 864, 867, as follows:
While it is true, as argued by appellee's counsel, that art. 1, § 6, Constitution of Alabama 1901, begins "That in all criminal prosecutions, the accused * * *", it must be remembered that in the instant case the supposed justification for removing appellant's telephone was that the appellant was accused of using the telephone for criminal purposes. Art. 1, § 6, supra, continues "nor be deprived of life, liberty, or property, except by due process of law; * * *." [Emphasis supplied.]
In addition to the protection afforded appellant by the law of Alabama, the Fourteenth Amendment to the Federal constitution prohibits any State of depriving any person of life, liberty or property without due process of law. Even Rhode Island admits this provision of the Federal Constitution is applicable to civil cases. Notice and hearing, which were denied the appellant before her telephone was summarily removed, are the backbone of due process. The Supreme Court of the United States in the Alabama case of Simon v. Craft, 182 U.S. 427, 21 S. Ct. 836, 45 L. Ed. 1165, said:
Eminent counsel for the appellee next argue that due process was not violated *267 because the scope of Title 48, Sections 57, 63 and 79, Code of Alabama 1940, are broad enough to countenance an appeal by the appellant, to the Public Service Commission to have her telephone service restored. By the same token, if the police commissioner's request was based on fact rather than mere suspicion, he had a right to apply to the Public Service Commission for an order directed to the telephone company to discontinue the subscriber's telephone; and thereby afforded the appellant notice and hearing as required by due process in advance of his summary action.
Distinguished counsel for the City of Birmingham says, in his brief amicus curiae:
The same argument might be made on behalf of wire tapping, involuntary confessions, unreasonable search and seizure, and suspension of the writ of habeas corpus. However, it is the experience of the English-speaking people that due process and the other fundamental guarantees of the Bill of Rights are the cornerstone of individual liberty, and that these basic rights can neither be disregarded nor eroded away by the winds of an ever-strengthening executive branch of the government.
The application for rehearing is denied.
SIMPSON and STAKELY, JJ., concur.
LAWSON, J., concurs in the result.
LIVINGSTON, C. J., and GOODWYN and MERRILL, JJ., dissent. | March 24, 1955 |
652f9be5-a921-4e04-8f44-43f29eaafc12 | Collins v. Shelley | 514 So. 2d 1358 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1358 (1987)
Teresa Joan COLLINS
v.
Tony G. SHELLEY, a minor, By and Through his father and next friend, Gary SHELLEY; and Gary Shelley, individually.
86-321.
Supreme Court of Alabama.
October 2, 1987.
*1359 Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for appellant.
Ernest H. Hornsby and Dow T. Huskey of Johnson, Huskey, Hornsby & Etheredge, Dothan, for appellees.
BEATTY, Justice.
This is an appeal by the defendant, Teresa Collins, from a judgment for the plaintiffs, Tony G. Shelley, a minor who sued through his father and next friend Gary Shelley, and Gary Shelley individually, based upon a jury verdict in an action based upon alleged negligence and wanton conduct. We affirm.
The action arose out of an automobile accident at the intersection of Ross Clark Circle and Old Taylor Road in Dothan. Ross Clark Circle is a four-lane highway divided by a median between eastbound and westbound traffic, with two lanes in each direction. Each traffic lane is approximately 20 feet in width.
Defendant left her home on Old Taylor Road, about one-half mile from the accident scene, driving a Datsun 210 automobile owned by her father but provided for her use. She was familiar with the intersection and testified that she stopped at a stop sign for traffic approaching it. There were no obstructions at the intersection, and the day of the accident was a clear day. Her radio and air conditioner were on, and the windows were up. The defendant testified that, seeing no traffic, she proceeded across the intersection. She could not remember whether she had stopped in the median or had proceeded completely across Ross Clark Circle and onto Old Taylor Road when her automobile was struck.
Plaintiff Tony Shelley testified that he was driving a 1977 Dodge Colt automobile approximately 30 to 50 m.p.h. in an easterly direction in the outside lane of Ross Clark Circle immediately before the collision. The intersection was unobstructed. As he approached the intersection, he said, defendant's automobile "flashed right in front of me and on a minute reaction, I embraced myself on the steering wheel and I slammed on brakes, but I caught her in her side and she caught me in the front." According to Tony Shelley, the defendant was around 10 to 15 feet in front of him when he first saw her, and the impact occurred in his lane of traffic.
A police officer, Robert Armstrong, testified concerning his investigation and the physical evidence at the scene establishing the point of impact:
Count I of the two-count complaint alleged negligence and wanton conduct on the part of Teresa Collins in the operation of her automobile, while Count II alleged that Collins negligently or wantonly failed to avoid a collision with Tony's automobile. Both counts alleged serious bodily injury as a proximate result. Plaintiff Gary Shelley *1360 claimed damages for loss of services and claimed medical expenses. The defendant's answer denied liability and alleged contributory negligence. At the conclusion of plaintiffs' case and again at the conclusion of the entire case, defendant moved for a directed verdict on plaintiffs' wanton conduct claims. The trial court denied each motion. The jury returned for the plaintiffs a verdict of $47,371.77, and judgment was entered thereon. The defendant's post-trial motion for J.N.O.V. or new trial was denied, and this appeal followed.
Defendant presents four issues for review:
1. Whether the trial court committed reversible error in denying defendant's motion for directed verdict on the claim of wantonness.
2. Whether the trial court committed reversible error in permitting the plaintiffs to strike their claim for punitive damages after the court had stated to the jury that there was a claim for punitive damages.
3. Whether the trial court committed reversible error in refusing to grant defendant's requested jury charge on an alleged forfeiture of the right-of-way by the plaintiff driver.
4. Whether the trial court committed reversible error in its charge regarding damages for loss of earnings and loss of services.
Familiar principles on the first issue were recited in Smith v. Bradford, 475 So. 2d 526, 528 (Ala.1985):
"`[A] motion for directed verdict and its corollary motion for judgment notwithstanding the verdict objectively test the sufficiency of the evidence:
"`"[U]nder our system, the jury must be allowed to pass on the evidence if any, no matter how slight, is offered, which, if believed, would support a verdict in favor of the party against whom a directed verdict is sought."'
"Herston v. Whitesell, 374 So. 2d 267, 270 (Ala.1979). ...
"`A directed verdict is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ....'
"Deaton, Inc. v. Burroughs, 456 So. 2d 771, 775 (Ala.1984).
That opinion also included the definition of wantonness:
"`Wantonness' is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result.... Wantonness may arise [when one has] knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on disaster.... Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand.... Knowledge need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference."
475 So. 2d at 528-29 (quoting prior cases).
Applying the evidence most favorably for plaintiffs, we find at least a scintilla of evidence of wantonness on the defendant's part. Ross Clark Circle is a major traffic artery, and there were no obstructions to visibility at its intersection with Old Taylor Road at the time in question. Each lane of travel is approximately 20 feet wide, and the two lanes on each side are separated by a median of approximately the same width. There is some evidence *1361 that defendant was travelling at between 20 and 25 m.p.h. when the accident occurred. If, as Tony Shelley testified, defendant's automobile "flashed right in front" of him at that speed, having travelled through three lanes of traffic and the median, it is reasonably inferable either that defendant did not stop at the stop sign before entering Ross Clark Circle, or that, if she did, she sped into the Circle and across the median, disregarding oncoming traffic. Indeed, defendant testified that she never saw Tony's automobile; yet according to Tony, the collision occurred in the outside lane, i.e., the ane farthest from defendant's point of entry into Ross Clark Circle. There having been no obstructions, and visibility having been good at the time, defendant's operation of her vehicle could reasonably be viewed as evidence of "reckless indifference to the knowledge that such omission would likely result in injury to another." Bishop v. Poore, 475 So. 2d 486 (Ala.1985).
Following its instructions to the jury on the law of negligence and wanton conduct, the trial court had proceeded to instruct the jury on damages, when the following occurred:
The trial court then proceeded to instruct on compensatory damages.
Defendant argues that the trial court did not instruct the jury that it could not award punitive damages, that is, that the trial court did not take the issue of punitive damages away from the jury.
We respectfully differ. Reading the instructions given to the jury following plaintiffs' announcement, it is clear that the trial court limited plaintiffs' recovery to compensatory damages, as shown above. Indeed, notwithstanding the wantoness count, plaintiffs did not state a claim for punitive damages in the ad damnum clause of their complaint. The jury rendered a verdict in favor of Gary Shelley in the amount of $7,371.77, which is the exact sum proved as medical expenses incurred by him in the treatment of his son, and the $40,000 verdict in favor of Tony Shelley was substantially less than the combined amount ($75,000) sought by plaintiffs in their complaint.
Moreover, if defendant considered the trial court's instructions misleading or confusing, then explanatory instructions should have been requested. Feazell v. Campbell, 358 So. 2d 1017 (Ala.1978). This was not done, but we, nevertheless, find no error in the trial court's instructions.
Defendant contends that the trial court erred in refusing certain requested instructions pertaining to forfeiture of the right-of-way to a vehicle approaching or in an intersection. The plaintiffs maintain, on the other hand, that these refused charges were substantially covered by the following oral charge:
We note also that the trial court added the following to its oral charge:
Accordingly, we hold that the requested instructions were substantially covered by the trial court's oral instructions. United States Fidelity & Guaranty Co. v. Jones, 356 So. 2d 596 (Ala.1977).
The trial court charged the jury on loss of earnings and earning capacity:
The trial court distinguished Tony Shelley's claim for lost earnings (as an adult) from his father's claim for lost services:
The accident occurred when Tony was 17 years of age. At the time of trial, he was 20 years of age. Thus, both he and his father had a claim for loss of earnings. In their complaint, plaintiffs alleged that Tony Shelley sustained permanent disability as a proximate consequence of the occurrence. Such an allegation is sufficient to imply impairment of earning capacity. Bishop v. Poore, 475 So. 2d 486 (Ala.1985). Assuming that the fourth issue was preserved by proper objection, we find no error in the trial court's instruction.
Let the judgment be affirmed.
AFFIRMED.
MADDOX, ALMON, ADAMS and HOUSTON, JJ., concur. | October 2, 1987 |
665a8968-51fe-4b39-b639-88e14521e20c | Cofield v. McDonald's Corp. | 514 So. 2d 953 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 953 (1987)
Keenan Kester COFIELD
v.
McDONALD'S CORPORATION, et al.
86-842.
Supreme Court of Alabama.
September 18, 1987.
Keenan Kester Cofield, pro se.
Tom E. Ellis of Kracke, Thompson & Ellis, Birmingham, for appellees.
PER CURIAM.
This is an appeal from an order dismissing plaintiff's cause of action against McDonald's Corporation, a specifically named defendant, and other entities plaintiff says were intended defendants. We affirm.
The plaintiff, Keenan Cofield, filed suit against McDonald's Corporation for negligence, wantonness, and fraud. Mr. Cofield is a Muslim and claims he was injured by McDonald's selling him food prepared with oils, greases, and lards containing animal by-products and pork. He alleges fraud against McDonald's because it failed to disclose this food preparation process.
Cofield filed his complaint pro se on September 18, 1986, against McDonald's Corporation. On October 19, 1986, he filed a motion for summary judgment and application for entry of default. On December 9, 1986, the case was transferred to the Bessemer Division of Jefferson County. On January 16, 1987, Cofield filed a motion to dismiss McDonald's Corporation, asserting that he had sued the wrong party, and he requested ten days to substitute the proper defendants. He asked for a hearing on January 30, 1987. Cofield failed to appear at the January 30 hearing. Upon receipt of Cofield's motion, the court dismissed McDonald's Corporation, with prejudice. On February 9, 1987, although McDonald's had already been dismissed, the trial court entered another order purporting to grant its motion to dismiss for failure of the complaint to state a claim upon which relief could be granted. After receipt of this last order, Cofield filed a motion for judgment on the pleadings, which was heard and dismissed by the trial court on February 13, 1987, and the file in the case was ordered closed. Cofield then filed a notice of appeal on February 18, 1987.
Cofield argues that the trial court's order of February 13, 1987, determining that no cause of action existed against those entities other than McDonald's was erroneous. He argues that although McDonald's Corporation was dismissed as a party, two other entities, McDonald's CLP Corporation and McDonald's Restaurant of Bessemer, Alabama, remained, as defendants, as evidenced by the case action summary sheet. However, Rule 10(a), A.R.Civ.P., requires that a complaint include the names of all parties in *954 the title of the action. We have held that "it is the title of the Complaint and not the body that establishes the parties who are before the court as litigants." Corona v. Southern Guar. Ins. Co., 294 Ala. 184, 186, 314 So. 2d 61, 63 (1975). From the record in the present case, it is apparent that McDonald's Corporation is the only entity named as a defendant. In order to properly sue an intended defendant, the plaintiff is required to properly name the defendant. Methvin v. Methvin, 279 Ala. 671, 189 So. 2d 468 (1966). Although Cofield probably intended an action against McDonald's CLP Corporation and McDonald's Restaurant of Bessemer, Alabama, he did not properly identify them in his complaint. A plaintiff acting pro se is required to comply with the Rules of Civil Procedure in the same manner as every other litigant. Hubbard v. Montgomery, 372 So. 2d 315 (Ala.1979). Therefore, because Cofield's complaint did not comply with the Rules as to the other intended defendants, the trial court correctly dismissed the complaint, and its judgment is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ALMON, SHORES and STEAGALL, JJ., concur. | September 18, 1987 |
1702e38d-c056-443f-ac15-9f0d04ec235f | Ex Parte Clayton | 514 So. 2d 1013 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1013 (1987)
Ex parte David CLAYTON and Kathy Clayton.
(In re: The ESTATE OF Robert J. ECKERT, Jr., deceased).
86-958.
Supreme Court of Alabama.
September 25, 1987.
*1014 M. Wayne Wheeler, Birmingham, for petitioners.
Jesse P. Evans III and Douglas Corretti of Corretti & Newsom, Birmingham, for respondent.
ADAMS, Justice.
Petitioners, David and Kathy Clayton, seek a writ of mandamus directed to the Honorable Marvin Cherner, Circuit Judge, Jefferson County, Alabama, compelling him to vacate his order of March 27, 1987, removing the administration of the estate of Robert J. Eckert, Jr., from the probate court of Jefferson County, Alabama. Because we find no abuse of discretion by Judge Cherner, we deny the writ of mandamus.
This matter began in probate court with the administration of the estate of Robert J. Eckert, Jr. Petitioners filed a claim against the estate for breach of warranty arising from a contract between the decedent and his wife, and the petitioners. The *1015 breach of warranty claim was brought in the probate court. Later, the claim was amended to invoke the equity jurisdiction of the Jefferson County Probate Court pursuant to a local act relating to Jefferson County, Act No. 1144 (1971 Alabama Acts), and to make a claim against the administratrix, individually, for $100,000.00 in damages.
The trial began on petitioners' claim in probate court on March 26, 1987, with attorneys for both sides present. Petitioners' case began and continued for three hours, until the judge recessed for the day. By 8:30 a.m. the following morning, the administratrix of the estate had obtained an order from the Honorable Marvin Cherner granting her petition for removal of the administration of the estate to circuit court pursuant to § 12-11-41, Code of Alabama (1975).
Petitioners now seek a writ of mandamus on three grounds:
1. That once equity jurisdiction had been invoked pursuant to Act No. 1144, Judge Cherner did not have the authority and/or jurisdiction under § 12-11-41, Code of Alabama (1975), to remove the matter from probate court to circuit court.
2. That Judge Cherner abused his discretion by ordering removal to circuit court in the middle of the oral hearing in the probate court.
3. That Judge Cherner had no right to remove the administration of the estate to circuit court without notice to the claimants against the estate.
Since mandamus is an extraordinary remedy, the standard for determining whether it should be granted is to determine whether there has been a clear abuse of discretion by the trial judge in an arbitrary and capricious manner. Ex parte Nelson, 448 So. 2d 339, 340 (Ala.1984); Ross v. Luton, 456 So. 2d 249 (Ala.1984); Ex parte Hartford Insurance Co., 394 So. 2d 933 (Ala.1981); Ex parte Wilson, 408 So. 2d 94 (Ala.1981). Further, a writ of mandamus will not be issued unless the movant has a clear and indisputable right to a particular result. Ex parte Thompson, 474 So. 2d 1091 (Ala.1985); Ex parte Southway Discount Center, Inc., 445 So. 2d 898 (Ala.1984). Since we find no abuse of discretion by Judge Cherner, we deny the writ of mandamus. Nevertheless, we will address all three issues raised by the petitioners.
Petitioners argue that there is a conflict between the general removal statute, § 12-11-41, Code of Alabama (1975), and the local act, Act No. 1144 (1971) Alabama Acts. Act No. 1144 permits the probate court to exercise concurrent jurisdiction with the circuit court on equity issues by granting the parties the power to invoke equity jurisdiction in the probate court for those cases already within its jurisdiction. The stated purpose of the statute is to expedite and facilitate the administration of estates by permitting the probate court to apply equitable remedies to the cases already within its jurisdiction. Act No. 1144, § 6.
Petitioners argue that this statute conflicts with the general removal provision of § 12-11-41, Code of Alabama (1975), which states:
Though the local act confers equity jurisdiction on the probate court, § 6 of the *1016 local act makes it evident that powers granted to the court pursuant to the local act in no way affect the rights and conditions for removal under the general statute. Section 6 of Act No. 1144 states:
There is no ambiguity in the language of the local act; thus, there is no need for this Court to go beyond the face of the statute. We find that the local act does not limit or change the administratrix's right to remove pursuant to the requirements of § 12-11-41, Code of Alabama (1975).
Given our finding that there is no conflict between the local act and the general statute, the remaining question is whether the administratrix properly petitioned for removal pursuant to § 12-11-41, Code of Alabama (1975). It is undisputed that the petition for removal complied with the formal requirements of § 12-11-41. However, petitioners dispute the timeliness of the petition and the ex parte nature of the order.
Section 12-11-41, Code of Alabama (1975), allows removal of the administration of the estate "at any time before a final settlement." The parties were in the midst of the trial on petitioners' breach of warranty claim against the estate when the administratrix of the estate petitioned for removal to circuit court. The administratrix had appeared in probate court and was actively participating in the trial at the time she petitioned for removal. Petitioners have not argued that commencement of the trial on the claim against the estate constituted a "final settlement" of the estate, nor does this Court conclude that it was a final settlement.
The language of the statute"at any time before a final settlement"is broad and allows removal at any time. § 12-11-41, Code of Alabama (1975). The only limitation on removal occurs once the probate court has taken steps toward a final settlement, or has, in fact, made a final settlement. Mobbs v. Scott, 233 Ala. 70, 169 So. 698 (1936); Ex parte McLendon, 212 Ala. 403, 102 So. 696 (1924). Nonetheless, this rule does not apply if the probate court lacks the authority or jurisdiction to render adequate relief in equity. Crossland v. First National Bank of Montgomery, 233 Ala. 432, 172 So. 255 (1937).
"Final settlement" has a distinct meaning. Section 43-2-502, Code of Alabama (1975), states what actions constitute a final settlement:
Furthermore, this Court has previously held that "[j]urisdiction for final settlement *1017 in the probate court begins upon filing accounts and vouchers with statement of the heirs invoking the court's jurisdiction for such settlement and an order entered setting day, directing notice, etc." McLendon, supra, 212 Ala. at 405, 102 So. 696, citing §§ 5901, 5904, Code of Alabama (1923), now §§ 43-2-501 and 43-2-502, Code of Alabama (1975).
Finally, the administratrix's petition for removal of the administration of the estate must be considered separate and distinct from petitioners' claim against the estate. If, for instance, an heir of the estate who was uninvolved in the claim against the estate for the breach of warranty, rather than the administratrix, had petitioned for removal at precisely the same time, the petitioners would have little basis for arguing that the petition for removal was based on what occurred at the trial.
Administration of the estate is a broad concept involving all matters necessary to reach a final settlement of the estate. Petitioners' breach of warranty claim is but one aspect of the administration of the estate, and it is treated as a possible debt owed by the estate that must be decided before the court can order a final settlement. This concept is further illustrated in § 43-2-501, Code of Alabama (1975), which states when final settlement can occur:
If petitioners' claim is for a debt owed by the estate, then final settlement cannot occur until that claim has been decided. If that is true, then it is impossible for the trial on petitioners' claim for breach of warranty to constitute a final settlement of the estate.
Petitioners argue that once the jurisdiction of a court attaches, a decree or decision by the probate court is conclusive. Petitioners cite Culp v. Godwin, 295 Ala. 316, 329 So. 2d 88 (1976), holding that once the probate court has reached a final judgment on a claim against the estate, the only remedy is an appeal, even if the case is later removed to circuit court. Wilkerson v. Hagan, 265 Ala. 515, 92 So. 2d 901 (1957). In other words, petitioners argue, once the probate court decides a claim and the time for appeal has passed, a subsequent removal of the administration of the estate to circuit court has no effect on the judgment of the probate court on the claim against the estate. Culp, supra; Wilkerson, supra.
Culp, supra, is not applicable to the facts of this case. When the administration of the estate is removed, all aspects of the administration must be removed. Johnson v. Johnson, 252 Ala. 366, 41 So. 2d 287 (1949); Brewer v. Brewer, 250 Ala. 658, 35 So. 2d 557 (1948). It would be improper to allow the probate court to have jurisdiction over petitioners' claim and the circuit court to retain jurisdiction over all other aspects of administration. In Culp, supra, the probate court had already reached a final judgment prior to removal of the administration of the estate. At that point, it was unnecessary and improper to retry the claim against the estate. White v. Hilbish, 282 Ala. 498, 213 So. 2d 230 (1968).
Clearly, in the case of petitioners' claim, there had been no final settlement on the claim by the probate court, but petitioners argue that allowing removal once the trial on their claim has begun is inherently unfair. Specifically, petitioners argue that this permits the administratrix to preview the case, harass the petitioners, or simply conclude that the hearing in probate court was not going in their favor. In addition, they say, allowing removal in the middle of trial is a waste of time and expense.
Petitioners' arguments are reasonable. However, if removal is allowed at any time before final settlement of the estate, and the claim against the estate has not led to a final settlement, then § 12-11-41, Code of Alabama (1975), permits removal even in the midst of trial. See Culp, supra.
Petitioners' arguments would be legitimate as applied to parties involved in the final settlement of the estate, since § 12-11-41, creates uncertainty in the *1018 sense that an administrator or heir and other parties specified in the statute can arguably petition for removal at any time prior to final settlement. However, as it applies to final settlements, this Court has already limited removal once the court has taken steps toward final settlement. See Mobbs, supra, and McLendon, supra. Furthermore, though that is an important issue, it is not the question before this Court. The facts of this case do not support a finding that the trial was part of the final settlement of the estate. Even if it were, this Court would only have the power to interpret the legislation, not rewrite it.
Based on the foregoing, we find no basis for concluding that the trial on petitioners' claim constituted a step toward final settlement; therefore, we find that the petition for removal in the midst of trial on the claim against the estate was timely.
The final issue to be decided is whether the circuit judge abused his discretion in ordering removal without giving notice to the petitioners. We find that § 12-11-41 neither expressly nor impliedly requires that any party receive notice of a petition for removal. The statute confers a right upon the heirs, administrators, and certain other parties to petition for removal at any time before final judgment without assigning any special equity, simply by alleging in the petition that in the opinion of the petitioner the estate would be better administered in the circuit court. Dooley v. Dooley, 205 Ala. 281, 87 So. 545 (1921). Upon the timely filing of a sworn petition averring these facts, the court, as a matter of law, must grant removal. Since removal is a matter of right, notice is unnecessary.
For the foregoing reasons, the petition for writ of mandamus is denied.
WRIT DENIED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | September 25, 1987 |
3d0d3735-ef17-4556-ab8e-939913136f3e | Cole v. Minor | 518 So. 2d 61 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 61 (1987)
Catherine COLE, et al.
v.
James Herschel MINOR, et al.
85-1072.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied December 4, 1987.
Charles E. Pearson, and Mary R. McKay of Watson & Harrison, Tuscaloosa, for appellants.
Ronald H. Strawbridge, Vernon, for appellees.
*62 PER CURIAM.
This appeal involves the interpretation of a warranty deed and the oil, gas, and mineral rights thereby conveyed. The trial court awarded a ¼ interest to the appellants and a ¼ interest to the appellees. We reverse, holding that the appellants are entitled to a ½ interest.
The facts relevant to this controversy had their beginning in 1929 when D.C. Holloway and his wife deeded property to Ed Minor, reserving a ½ interest in the oil, gas, and mineral rights. In 1946, Minor and his wife conveyed the subject property to J. Tom Taylor by warranty deed containing the following language:
Additionally, the 1946 deed contained express covenants of warranty that the grantors were "lawfully seized in fee simple of said premises"; that the conveyed property was "free of all encumbrances"; and that the grantors had "a good right to sell and convey the same as aforesaid ... and ... shall warrant and defend the same to the said J. Tom Taylor, his heirs, executors, and assigns, forever, against the lawful claims of all persons." The plaintiffs and defendants in the present action are the heirs and successors in interest of Ed Minor and J. Tom Taylor, respectively.
From these stipulated facts, the following issue emerges: If a warranty deed grantor does not own an interest great enough to satisfy both the grant and the purported reservation, does the covenant of warranty require that the "reserved" interest yield to the granted interest? Reduced to its simplest terms, then, the issue is: Under these facts, where the granting clause and the reservation are in conflict, which of the two prevails?
In cases where a warranty deed is supported by consideration, and the grantor's interest is insufficient to give effect to both the grant and the reservation, the reservation must fail and the risk of title loss is on the grantor. In addressing this issue, we are not writing on a clean slate. A similar question has been answered in Morgan v. Roberts, 434 So. 2d 738 (Ala. 1983) This Court's holding with respect to the same basic issue is found at 739-40:
While this seems to be clear, the confusion in this area apparently arises in determining the quantity of interest required to give effect to both the grant and the reservation.
A fundamental premise in construing a deed is that the intent of the parties is to be ascertained from the face of the document. Lietz v. Pfuehler, 238 Ala. 282, 215 So. 2d 723 (1968). In situations where there are express reservations or exceptions, "The key question is, not what the grantor purported to retain for himself, but what he purported to give to the grantee." 1 Williams & Myers, Oil and Gas Law, § 311, p. 115 (1986). (At this point we acknowledge much guidance from Williams *63 and Myers, not only in setting out the issue, but also in resolving it.)
Specifically, there are three quanta of interest that must be ascertained in order to construe a deed that contains a reservation. 1 Williams & Myers, § 311, at 115-16. First, the quantum of interest specified in the granting clause must be determined. If the granting clause does not expressly limit the grant to a lesser amount, then the quantum of interest purportedly conveyed is 100 percent of all right, title, and interest. Reichert v. Jerome H. Sheip, Inc., 222 Ala. 133, 131 So. 229 (1930). The next step in this process is to ascertain the quantum of interest reserved in a subsequent clause.
The final quantum to be determined is that quantum of interest the grantee is to receive under the deed. This amount can be calculated by subtracting the quantum of interest reserved to the grantor from the quantum of interest conveyed in the granting clause.
In the instant case, the quantum of interest specified in the granting clause, as set out above, is 100 percent of all right, title, and interest, including mineral interests, in the described property. The language of the granting clause is clear and unambiguous and subject only to this interpretation.
Next, we focus our attention on the reservation. The grantors expressly reserved a ½ interest in the oil, gas, and mineral rights reserved. In their complaint, the plaintiffs alleged that this clause reserved unto the grantors ½ of all the oil, gas, and other minerals. However, on appeal, these same parties argue that the language of the reservation is ambiguous, and that the trial court was justified in receiving parol evidence in order to to determine the actual intent of the parties, and that the trial court correctly determined that the plaintiffs and defendants each owned ¼ of all the oil, gas and other minerals.
In analyzing the language of the reservation clause, it is clear that the largest possible quantum of interest reserved by the grantor is ½. This is the amount originally claimed by both parties, and the complaint, as originally worded, was filed in order to determine the owner of this interest, not to determine the quantum of interest reserved. In accordance with the evidence presented in this case, we hold that the reservation clause in question reserved ½ of all the oil, gas, and other minerals.
To conclude that a lesser amount was reserved would result in a purported conveyance to the grantees of an amount greater than ½. Such a finding would allow the grantees to maintain an action for breach of warranty for that quantum of interest the grantors could not convey because they were not the owners. Since this position was not taken by any party, we find the original posture of the action, as one to determine ownership, to be persuasive, and we herein hold that the reservation clause reserved ½ of all the oil, gas, and other minerals.
We now arrive at the crux of the problem: which ½ of the minerals did this deed reserve? Did it reserve the ½ interest outstanding in Holloway, or did it reserve ½ of the minerals to Minor in addition to the ½ interest outstanding in Holloway?
The appellees contend that at the time of the conveyance in 1946, the grantees had actual knowledge of the outstanding interest in Holloway. Therefore, they argue, the grantees knew or should have known that the reservation by Minor was in addition to the outstanding interest in Holloway. As stated in 1 Williams & Myers, § 311, p. 116-17 (assuming a third party owns ½ of the minerals and the deed expressly reserves ½ of the minerals):
Of course, the choice between these conflicting constructions depends upon whether it is proper to consider extraneous evidence in the resolution of this conflict.
First, we begin with the maxim that the intention of the parties is to be determined by the language of the deed. In a suit to construe an unambiguous instrument, actual knowledge of the parties, oral statements of the parties, and other matters are inadmissible. If the instrument is ambiguous, then these extraneous matters may be admissible in an action to reform the instrument. However, in an action to construe an instrument, matters should not be considered that are not available to one who innocently purchases from the grantee in the future. The subsequent purchaser should be able to rely on the interpretation of the deed alone, and should not be required to ascertain the prior grantee's actual notice of the outstanding interest. We hold that in an action to construe an unambiguous instrument, the actual knowledge of the grantee is not a factor to be considered, and the dicta in Morgan v. Roberts, 434 So. 2d 738 (Ala. 1983), suggesting that there is an actual-knowledge exception in Alabama should be disregarded. In summary, actual notice should be treated as immaterial in all actions to construe an unambiguous instrument.
Having stated that matters unavailable to subsequent purchasers should be inadmissible, we now address the derivative issue regarding the interpretation of an unambiguous instrument when the grantee has constructive knowledge of an outstanding interest. Does constructive notice of the outstanding interest aid in determining the parties' intention? We are not convinced that, at this time, the public records are so reliable, see Whitehead v. Hester, 512 So. 2d 1297 (Ala.1987), that the intention of the parties can be ascertained by coupling the language of the present instrument with previously recorded documents.
A couple of examples will illustrate why constructive notice should not be admissible in construing an unambiguous instrument:
See Williams & Myers, § 311, at 118.
Surely, in both examples, the grantee is entitled to 50 percent of the minerals. If constructive notice is admissible, however, the true intent of the parties will be defeated. Therefore, we reaffirm the axiom that extraneous evidence, including evidence of constructive notice, is not admissible in actions to construe an unambiguous instrument.
Recognizing that compelling examples can be made for the proposition that constructive notice should be one of the factors considered in construing a deed, we note that the rule barring consideration of actual or constructive notice adds an element of certainty to titles and allows future purchasers to rely upon the record title. To hold otherwise would reject the standard of objective interpretation in favor of equitable results that may be obtained by consideration of subjective *65 factors. Lowe, Oil and Gas Law, p. 128 (1983). The effect of adopting the alternative method would be that virtually every property title in this State would be subject to protracted litigation in order to ascertain the actual subjective intent of the parties. Additionally, to hold otherwise would render a covenant of title essentially meaningless if it guaranteed only the interest the grantor actually owned. Lowe, at 130.
Looking only to the deed, if the deed purports to deal with 100 percent of the minerals, then the only logical interpretation is that "the grantee is to receive that percentage or fractional interest in the land not reserved to [the] grantor." Williams & Myers, § 311, at 119. Applying this formula, we find that the purported conveyance of 100 percent, less a reservation of 50 percent, left a conveyance to J. Tom Taylor of 50 percent of all oil, gas, and other minerals. Minor could not convey any portion of the minerals that were outstanding in Holloway, and Taylor could look only to the interest owned by Minor to satisfy the quantum of interest conveyed. Since Minor owned only 50 percent of the minerals at the time of the conveyance, it was necessary for all of his interest to be transferred to Taylor in order to satisfy the mandate of the granting clause.
Our analysis of the evidence leads us to the conclusion that the appellants are the owners of ½ of all oil, gas, and other minerals and that the appellees are entitled to no interest in the oil, gas, and other minerals.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Williams and Myers are of the opinion that the first construction is the better rule and that actual notice should be inadmissible in a deed construction case. See, 1 Williams & Myers, Oil and Gas Law, § 311, p. 116-19 (1986). | October 2, 1987 |
c91a89f8-a6e6-4ff7-ac7e-bc11d2587b85 | Camelot Music, Inc. v. MARX REALTY & IMP. CO. | 514 So. 2d 987 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 987 (1987)
CAMELOT MUSIC, INC.
v.
MARX REALTY & IMPROVEMENT COMPANY, INC.
86-206.
Supreme Court of Alabama.
September 25, 1987.
*988 Stephen M. Wilson, Huntsville, for appellants.
Daniel F. Aldridge of Brinkley & Ford, Huntsville, for appellee.
MADDOX, Justice.
Marx Realty & Improvement Co., Inc. ("Marx Realty"), filed a complaint in the Circuit Court of Madison County against Camelot Music, Inc. ("Camelot"), demanding a judgment against Camelot for $11,067.64, plus interest, costs, and attorney fees. In the first count of the complaint, Marx Realty alleged that Camelot had "failed to pay rent installments and other leasing charges as set forth in the lease contract as the same fell due and that the rent installments and other leasing charges were then past due and unpaid." In count two of the complaint, Marx Realty alleged that Camelot "has failed to pay the rent installments and other leasing charges set forth in said lease contract as the same became due, and that there are now past due and unpaid $11,067.64 rent installments... security charges, merchant dues, common area dues and other expenses." Camelot filed a motion to dismiss but did not file an answer to the complaint.
The trial was set for July 15, 1986. On the date of trial, Marx Realty filed an application for a default judgment for $28,418.03, this sum consisting of accrued rent in the amount of $25,388.88, with the balance constituting costs and attorney fees. In addition, Marx Realty amended its complaint by adding another claim for $47,206.48 due in monthly installments through December 31, 1988.
After Marx Realty filed the application for default judgment and the amendment to the complaint, Camelot filed an answer and in the same pleading demanded a jury trial. The trial court refused to grant a default judgment, allowed the amendment to the complaint, allowed Camelot's answer, and refused the jury demand as untimely. After a hearing, the trial court entered a judgment for Marx Realty in the amount of $75,452.01. Camelot then filed a *989 motion for a new trial, which was denied. Camelot appeals from that judgment.
This case involves the following facts: In August 1978, Marx Realty executed a lease to Camelot Music for a unit in "The Mall" in Huntsville, Alabama. The lease agreement between Marx Realty and Camelot was for a term of ten years, with fixed minimum rent at $17,200 per annum through December 31, 1979, and $18,813 per annum from January 1, 1980, through December 31, 1988. The rent was to be paid in advance in equal monthly installments.
Camelot took possession of the leased unit on August 16, 1978. This particular mall in Huntsville experienced a dramatic decline in business and by the time of the trial of this case, only 50% of the stores in The Mall were occupied. Camelot Music terminated the lease and moved out of The Mall in March 1985. Marx Realty filed its complaint in November 1985.
The first issue raised on appeal is whether the trial court erred when it refused to grant Camelot's demand for a jury trial. Camelot contends on appeal that its demand for a jury trial, filed after Marx Realty's motion for a default judgment and amendment, was a timely demand for a jury trial pursuant to Rule 38(b), Ala.R. Civ.P. Camelot asserts that the amendment filed by Marx Realty adjusting the amount of damages created a "new issue" in this case, entitling it to a jury trial.
Rule 38(b), Ala.R.Civ.P., provides:
This rule establishes a time limitation for making a jury demand, which is dependent upon the date of service of the "last pleading directed to such issue." Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665 (Ala. 1981). It is well-settled law in this state that when the 30-day period of Rule 38(b) has run, an amendment that does not set forth new issues will not give rise to the right to demand a jury. Hamon Leasing, Inc. v. Continental Cars, Inc., 358 So. 2d 442 (Ala. 1978). In Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932 (Ala. 1983), this Court stated the following regarding a jury demand made following a motion for a default judgment:
431 So. 2d at 939.
After examining this Court's opinion in Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., supra, we are of the opinion that the trial court did not err when it denied Camelot's demand for a jury trial. In this case, Marx Realty filed its complaint in November 1985, and the case was set for trial on July 15, 1986. We hold that because Marx Realty had filed a motion for default before the jury demand was filed, the trial court could legally deny Camelot's jury demand.
The second issue raised on appeal is whether the trial court erred when it held that the liquidated damages provision of the lease agreement was valid. Camelot contends that it is invalid in that the trial court's ruling had the effect of holding that the lease agreement contained an acceleration clause for unaccrued rent.
We have examined the record in this case, and the only ruling by the trial court, after it heard the evidence itself, because of its denial of the jury demand, was an entry on the docket sheet which read:
"Judgment upon trial of case for plaintiff for $75,452.01."
The trial judge stated no specific reason or basis for his judgment; therefore, we cannot conclude that he, in fact, treated the subject lease as if it contained an acceleration clause for unaccrued rents, as Camelot argues.
We agree with Camelot's contention that there must be an express provision in a lease in order for it to provide for acceleration upon default, see, H.M. Price Hardware Co. v. Meyer, 224 Ala. 35, 138 So. 543 (1931), and after examining the lease between Marx Realty and Camelot, we agree that it does not allow Marx Realty to accelerate the due date of unaccrued rent payments, but, in this case, we are of the opinion that the lease contains a valid liquidated damages clause that will support the award of damages made by the trial judge. Section 10.3 of the lease provides, in pertinent part:
Camelot also contends that the trial court's award of $75,452.01 as liquidated damages was improper. Camelot asserts that this sum should be construed as a penalty rather than as liquidated damages.
It is true in Alabama that, because penalty provisions are void as against public policy, "Courts ... are disposed to lean against any interpretation of a contract which will make the provision one for liquidated damages and, in all cases of doubtful intention, will pronounce the stipulated sum a penalty." Cook v. Brown, 408 So. 2d 143, 144 (Ala.Civ.App. 1981); see also, Keeble v. Keeble, 85 Ala. 552, 5 So. 149 (1888). In Alabama, liquidated damages are a sum to be paid in lieu of performance, Forsyth v. Central Foundry Co., 240 Ala. 277, 198 So. 706 (1940), while a penalty is characterized as a security for the performance of the agreement or as a punishment for default. Standard Tilton Milling Co. v. Toole, 223 Ala. 450, 137 So. 13 (1931). The courts generally identify three criteria by which a valid liquidated damages clause may be distinguished from a penalty. First, the injury caused by the breach must be difficult or impossible to accurately estimate; second, the parties must intend to provide for damages rather than for a penalty; and, third, the sum stipulated must be a reasonable pre-breach of the probable loss. See, C. Gamble and D. Corley, Alabama Law of Damages, § 5-4 (1982). Determining whether a liquidated damages provision is valid is a question of law to be determined by the trial court based on the facts of each case. Cook v. Brown, 408 So. 2d 143 (Ala.Civ.App.1981).
*991 It is clear that the damages awarded by the trial court in this case are compensatory, are to be paid in lieu of performance, and are approximately in a sum that the parties reasonably could have expected to be suffered by the lessor in the event of a breach. In other words, the calculations by the trial court gave an amount that would have been paid had Camelot performed its obligations under the contract. Because the liquidated damages assessed here are those that Camelot reasonably could have expected to result from its breach of the contract, we hold that the liquidated damages clause of the contract was not a penalty, and that the trial judge did not err in assessing damages in the sum found by him to have been suffered by the lessor.
The judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
JONES, SHORES, ADAMS and HOUSTON, JJ., concur.
BEATTY and STEAGALL, JJ., dissent.
TORBERT, C.J., not sitting.
BEATTY, Justice (dissenting).
The majority opinion does not address the question presented here of whether the amended complaint, filed by Marx Realty on the day of the scheduled nonjury trial, raised a new issue that, pursuant to Rule 38(b), A.R.Civ.P., Hamon Leasing, Inc. v. Continental Cars, Inc., 358 So. 2d 442 (Ala. 1978), and Ex parte Town of Citronelle, 428 So. 2d 600 (Ala. 1983), would have allowed Camelot Music a jury trial as to, at a minimum, the new issue. Stated another way, the issue presented is whether the filing of a motion for default judgment, prior to the defendant's request for a trial by jury, serves to vitiate the defendant's right to a jury trial for any and all claims subsequently or contemporaneously filed against that defendant, even if these claims raise entirely new issues? I think not and, accordingly, I must respectfully dissent.
In the present case, Marx Realty originally sought "rent installments and other leasing charges [that] were then past due and unpaid," i.e., accrued rents and charges. It increased its ad damnum on the day of the trial to $28,418.03 to reflect the rents accrued up to the date of the trial on July 15, 1986, and filed a motion for default judgment. However, on the day of the trial, Marx Realty also amended its complaint, to assert a new claim for $47,206.48, which represented an amount due in unaccrued rents and charges from the date of the trial to the end of the original lease term on December 31, 1988. This amendment clearly raised for the first time a "new issue" concerning damages for unaccrued rents, regardless of whether the amount sought is categorized as accelerated rents or as liquidated damages. This amended complaint also raised, for the first time, the construction of § 10.3 of the lease.
Prior to this amendment, the action against Camelot had involved only past due and unpaid rents, but by seeking damages for unaccrued rents, the amended complaint presented a different claim and sought additional relief. The judgment entered by the trial court for the plaintiff in the amount of $75,452.01 included the amount sought in the amended complaint for unaccrued rents.
Under this Court's construction of Rule 38(b), two separate lines of cases have emerged that deal with the question of a Rule 38(b) waiver. In Hamon Leasing, Inc. v. Continental Cars, Inc., supra, and Ex parte Town of Citronelle, supra, we held that an amended complaint or a cross-claim that presented a "new issue" would revive a party's right to demand a jury trial, even though that right had been previously waived. In Hamon Leasing, Inc., we specifically held that the raising of a "new issue" would cover, at a minimum, the party's entitlement to demand a jury trial as to the new issue, 358 So. 2d at 443, since Rule 38(b) allows the party to file a demand for a jury trial within "30 days after the service of the last pleading directed to such issues."
*992 We have also developed a line of cases, as evidenced by Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665 (Ala. 1981), and Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932 (Ala. 1983), that have held that the filing of a motion for default judgment precludes the ability of a party to file an answer to a cross-claim or counterclaim and to treat that answer as a "last pleading" for Rule 38(b) purposes.
The majority cites the latter line of cases in reaching its conclusion on the present case, but in so doing, the majority fails to recognize that Brown Mechanical Contractors, Inc., dealt solely with a motion for default judgment on an unanswered cross-claim that raised the same issue as the original complaint, i.e., Goodner's negligence. In fact, all of our cases to date that have addressed motions for default judgment as a means of avoiding the reviving of a Rule 38(b) waiver have concerned cross-claims or compulsory counterclaims on the same issue that was raised in the original complaint; none of them addressed the question of a "new issue." Furthermore, none of the cases that have dealt with the raising of a "new issue" has involved a default judgment.
This appeal raises for the first time the interrelationship of these two separate rules of law. Nonetheless, the majority opinion does not recognize this distinction, and as a result, it succeeds in partially overruling our holdings in Ex parte Town of Citronelle and Hamon Leasing, Inc., without addressing the essence of the defendant's appeal. As I see this case, the proper order of inquiry should be:
(1) Did the amended complaint raise a "new issue" that would give rise to an additional 30-day period in which the defendant could have sought a trial by jury pursuant to Rule 38(b) and the rule in Hamon Leasing, Inc.?
(2) If so, what effect, if any, would the motion for default judgment have on the appellant's right to a jury trial on this issue?
(3) If none, then did this "new issue" revive the appellant's right to a jury trial on all the issues?
While I agree with the majority that Brown Mechanical Contractors and Dorcal, Inc., would control on the issue of accrued rents, I cannot accept its reliance on Brown Mechanical Contractors for the proposition that a motion for default judgment waives the defendant's right to request a jury demand on any subsequently filed amendment when these amendments raise totally new issues. Accordingly, I must dissent.
I am equally concerned with the majority's treatment of the second issue on this appeal and must dissent on it as well, because I cannot perceive the grounds on which the trial court's judgment for unaccrued rents up to the end of the term of the lease can be sustained. I agree that the lease did not contain an acceleration clause, but I have difficulty affirming the judgment for the unaccrued rents, even recognizing the ore tenus presumption of correctness, and even assuming that the majority is correct in its conclusion that this was a valid liquidated damages clause. I dissent simply because the lease made no provisions for the collection of unaccrued rents.
Section 10.3(c) provided:
Thus, the terms of § 10.3 clearly state that the liquidated damages would be the difference in the amount of the original lease ($1,567.75 per month) and the amount of rent of the new tenant ($795.71) (plus any expenses incurred by the landlord in connection with his reletting the premises). Further, these damages would be paid by Camelot in monthly installments on the rent date specified in Camelot's original lease. Section 10.3(c) did not give Marx Realty the right to collect liquidated damages for unaccrued rents up to the end of the term of the lease; rather by the terms of this lease, it could claim them only as the difference accrued. Accordingly, I would reverse the trial court's judgment on liquidated damages as well.
STEAGALL, J., concurs. | September 25, 1987 |
67eca7c3-7920-461e-8703-743a03d40845 | Johnson v. Central Bank of the South | 514 So. 2d 969 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 969 (1987)
David E. JOHNSON
v.
CENTRAL BANK OF THE SOUTH.
85-1504.
Supreme Court of Alabama.
September 25, 1987.
Leon F. Stamp, Jr., Mobile, for appellant.
Larry U. Sims and Richard E. Davis of Coale, Helmsing, Lyons & Sims, Mobile, for appellee.
PER CURIAM.
David E. Johnson appeals from a summary judgment granted in favor of Central Bank of the South on his claim alleging conversion, wrongful repossession, wrongful detention, and misrepresentation.
On January 27, 1984, Johnson executed a note and a security agreement for $16,300 to Central Bank for the purchase of an automobile. In May 1985, Johnson defaulted on the note and Central Bank repossessed the automobile.
The note/security agreement contained a repossession clause that gave Central Bank the right to repossess without notice to the debtor. The agreement also contained both a non-modification clause, which required any changes in the agreement to be made in writing, and a non-waiver clause, which gave the lender the right to delay the enforcement of any of its rights under the agreement without destroying those rights in other instances.
Johnson argues on appeal that a jury question was presented as to whether Central Bank should be estopped from repossessing the automobile, since it was repossessed without giving Johnson prior notice, and whether the seizure of the automobile amounted to a conversion.
We affirm the judgment of the trial court on the authority of Williams v. Ford Motor Credit Co., 435 So. 2d 66 (Ala.1983), and Hale v. Ford Motor Credit Co., 374 So. 2d 849 (Ala.1979). This Court in Williams v. Ford Motor Credit Co., at 68, stated:
"We think our decision in Hale v. Ford Motor Credit Co., 374 So. 2d 849 (Ala. 1979), in which this Court delineated the rights and obligations of the parties under the terms of a security agreement containing both a non-waiver acceleration clause and a non-modification clause, is controlling here. In Hale, supra, this Court ruled that the secured party is not required to give notice to the debtor prior to repossession, even though past-due *970 payments have been accepted on previous occasions. Further, this Court concluded that a security agreement is effective according to the terms expressed in the agreement and that the inadvertence of the debtor in failing to make timely payments cannot raise an estoppel against the contractual interest of the creditor under the express terms of the security agreement, when there has been no written modification as required by the terms of the agreement. 374 So. 2d at 853; McAllister v. Langford Investigators, Inc., 380 So. 2d 299, 300 (Ala.Civ. App.1980)."
AFFIRMED.
TORBERT, C.J., and JONES, SHORES, ADAMS and STEAGALL, JJ., concur. | September 25, 1987 |
c7f84259-48f0-4c57-855b-67372b0ce542 | Ex Parte Rudolph | 515 So. 2d 704 | N/A | Alabama | Alabama Supreme Court | 515 So. 2d 704 (1987)
Ex parte Ronald RUDOLPH and Linda J. Rudolph.
(In re Ronald RUDOLPH and Linda J. Rudolph v. Jerry FARROW, et al.)
86-306.
Supreme Court of Alabama.
September 25, 1987.
*705 Jere L. Beasley and J. Greg Allen, of Beasley, Wilson, Traeger, Allen and Mendelsohn, Montgomery, for petitioners.
Philip Gidiere, of Carpenter & Gidiere, Montgomery, for respondent Lee Eaddy, Jr., M.D.
Tabor R. Novak, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for respondent Baptist Medical Center.
James W. Webb and Dorothy W. Littleton, of Webb, Crumpton, McGregor, Sasser, Davis & Alley, Montgomery, for respondent Paul Monahan, M.D.
Barry Teague, Montgomery, for respondent Jerry Farrow.
ADAMS, Justice.
Petitioners, Ronald and Linda Rudolph (hereinafter "petitioners"), seek a writ of mandamus directed to the Honorable Arthur E. Gamble, Jr., Circuit Judge, Lowndes County, Alabama, compelling him to vacate his order of October 6, 1986, and to join all defendants in the same action in Lowndes County. We remand.
Petitioner Ronald Rudolph and defendant Jerry Farrow were involved in an automobile accident on June 30, 1985. As a result of his injuries, petitioner Ronald Rudolph sought medical treatment. During the course of treatment, he alleges, he suffered additional injuries from negligent or wanton medical care from defendants/respondents Baptist Medical Center and Drs. Eaddy and Monahan (hereinafter "respondents"), as well as certain fictitious parties. Petitioners filed a single four-count complaint naming the driver of the car, Farrow, Drs. Eaddy and Monahan, and Baptist Medical Center, as defendants. Thereafter, respondents Eaddy, Monahan, and Baptist Medical Center moved to sever petitioners' claim against respondents from petitioners' claim against defendant Farrow, and to transfer venue to Montgomery County in the severed claim against the respondents. Judge Gamble granted the respondents' motion for severance, pursuant to Rule 21, A.R.Civ.P., and transferred the case to Montgomery County on October 6, 1986. A motion for reconsideration filed by petitioners was denied on November 24, 1986. Petitioners now seek a writ of mandamus on two grounds:
Since mandamus is an extraordinary remedy, the standard of review for a writ of mandamus is whether there has been a clear abuse of discretion by the trial judge in an arbitrary and capricious manner. Ex parte Nelson, 448 So. 2d 339, 340 (Ala. 1984); Ross v. Luton, 456 So. 2d 249 (Ala. 1984); Ex parte Hartford Insurance Co., 394 So. 2d 933 (Ala.1981); Ex parte Wilson, 408 So. 2d 94 (Ala.1981). Further, a writ of mandamus will not be issued unless the movant has a clear and indisputable right to a particular result. Ex parte Thompson, 474 So. 2d 1091 (Ala.1985); Ex parte Southway Discount Center, Inc., 445 So. 2d 898 (Ala.1984).
In joining the defendant Farrow with respondents, Drs. Eaddy and Monahan and Baptist Medical Center, petitioners primarily relied on permissive joinder under Rule 20, A.R.Civ.P., which states:
(Emphasis added.)
If the requirements for permissive joinder under Rule 20 are not satisfied, and there are no grounds for compulsory joinder pursuant to Rule 19, A.R.Civ.P., there can be no joinder of parties. However, there is no absolute rule for determining what constitutes "a series of transactions or occurrences." Generally, that is determined on a case by case basis and is left to the discretion of the trial judge. Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir.1974); Saval v. BL Ltd., 710 F.2d 1027, 1031 (4th Cir.1983). Though the rules allow virtually unlimited joinder of parties, the Committee Comments to Rule 20 make it clear that the trial court has "ample powers, under Rules 20(b), 21 and 42(b), to ensure that the trial is conducted in the most convenient and least prejudicial manner." Thus, simply because petitioners meet the requirements for permissive joinder, it does not necessarily follow that the court must allow all claims to proceed together.
The trial judge concluded that the parties had been misjoined and that severance was required pursuant to Rule 21, A.R.Civ.P. The trial judge did not exercise any discretion in severing the claims once he determined the parties were initially misjoined. If the parties had been misjoined, then severance would have been the proper remedy. However, this Court has previously held that successive torts causing a single indivisible injury may be permissibly joined. Guthrie v. Bio-Medical Laboratories, 442 So. 2d 92 (Ala.1983).
In Guthrie, one of the plaintiffs gave birth to a child suffering from injuries caused by an Rh incompatibility between the mother and child. The plaintiffs sued several defendants, including a medical laboratory that allegedly had mistyped the mother's blood four years prior to her pregnancy, and three doctors who had tested her blood during her pregnancy. After the trial court permitted the claims against the medical laboratory to be severed from the claims against the physicians who treated the plaintiff during her pregnancy, the plaintiffs sought a writ of mandamus from this Court to compel joinder of the *707 claims. This Court granted the writ, stating:
More recently, this Court in Ex parte Jenkins, 510 So. 2d 232 (1987), relied on Guthrie, supra, in deciding the same issue involved in this case. In Jenkins, the plaintiff was injured in an accident at work when a bundle of aluminum fell on him. The plaintiff claimed that, while being treated for injuries from the accident, he received negligent medical treatment. In the same suit, the plaintiff sued the supervisory employees from his place of work for negligent or wanton conduct and various doctors and a hospital for malpractice. The defendant doctors and the hospital moved to sever the claims against them from the claims against the employee defendants, and for change of venue. The trial court denied the motions, and the defendants sought a writ of mandamus from this Court compelling the trial judge to sever the claims.
This Court denied the writ of mandamus, reasoning that:
Ex Parte Jenkins, 510 So. 2d at 234.
Based on these cases, we conclude that the parties were not misjoined; therefore, severance was not required. Because the trial judge concluded that the parties were misjoined, he never exercised any discretion in determining whether to sever the claims for other reasons, which he has the discretion to do. We remand with instructions to consider whether to sever the claims.
However, in exercising that discretion, the trial judge should consider the prejudice to the parties that may result if the claims are severed. There are common issues of fact to be decided in this case and, if the claims are severed, it is possible that there could be inconsistent results. Furthermore, practicality and judicial economy are also relevant considerations. See Committee Comments, Rule 20, A.R.Civ.P. Petitioners argue that if the claims are severed, then pursuant to this Court's decision in Williams v. Woodman, 424 So. 2d 611 (Ala.1982), holding that a plaintiff can recover only once for a single injury, the respondents may avoid liability entirely and leave petitioners without an adequate remedy against the respondents for the injuries resulting from respondents' malpractice.
It is an accepted principle that a defendant is liable for all the foreseeable injuries caused by his negligence. Williams, supra; McClendon v. City of Boaz, 395 So. 2d 21 (Ala.1981); O'Quinn v. Alston, 213 Ala. 346, 104 So. 653 (1925). That an injured party will receive negligent medical care is always foreseeable. This Court has accepted this presumption, holding:
The case to which petitioner refers, Williams, supra, involved similar facts. The plaintiff was involved in a motorcycle accident with an uninsured motorist and sued his insurance company for the injuries resulting from the accident. The plaintiff recovered a judgment in the amount of $10,000.00 from the insurance company, and the judgment was satisfied. Subsequently, plaintiff filed a malpractice suit against the surgeon who treated the leg injuries caused by the accident. The surgeon moved for summary judgment, arguing that the plaintiff could recover only one time for his injuries and that he had done so in his initial suit against the insurance company. This Court affirmed the trial court's order granting summary judgment, on the grounds that the initial suit had, in fact, included damages for all the injuries caused by the accident, including any potential malpractice. However, this Court made it clear that if the plaintiff could have proven subsequent injury and/or damages resulting from the malpractice after the judgment in the initial lawsuit, summary judgment in favor of the surgeon would not have been appropriate. There were no facts to support that theory.
The petitioners reason that if the claims are severed, the respondents could make a motion for summary judgment pursuant to Williams, supra, and obtain dismissal on the theory that the claim for malpractice injury had already been satisfied in the suit against defendant Farrow. Let us make it clear that that is not the case.
Williams, supra, sets forth the basic premise in law that there can be but one recovery for a single injury. Though there may be several joint tort-feasors, a plaintiff is not permitted to sue one tort-feasor and satisfy his judgment, and then sue another tort-feasor to recover again. Williams, 424 So. 2d at 613, citing, Restatement of Judgments § 95 (1942); and Restatement (Second) of Torts § 886 (1979). Once the judgment has been satisfied for a single injury, no other suits by the plaintiff against any tort-feasor are permitted in regard to the same injury. In Williams, supra, the malpractice damages were included in the original recovery from the insurance company. When the plaintiff claimed damages, he made no distinction between those injuries caused by the accident and those caused by any malpractice; thus, his recovery for all injuries resulting from the accident constituted a complete recovery. Williams, supra. Thus, whether the claim is severed or not, petitioners are still entitled to recover only once for the injuries resulting from the accident and once for the injuries resulting from the malpractice.
Because of our resolution of the joinder issue, discussion of the venue issue is pretermitted.
For the foregoing reasons, this cause is remanded with instructions to consider the severance of the malpractice claim in light of this opinion and our recent decision in Jenkins, supra.
REMANDED.
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur. | September 25, 1987 |
9eb2691f-75c0-496b-b383-a203dd81799d | Ex Parte Giles | 554 So. 2d 1089 | N/A | Alabama | Alabama Supreme Court | 554 So. 2d 1089 (1987)
Ex Parte Arthur Lee GILES.
(Re Arthur Lee Giles v. State).
86-416.
Supreme Court of Alabama.
September 25, 1987.
*1090 Dennis N. Balske of Balske and Van Almen, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and William D. Little and Thomas R. Allison, Asst. Attys. Gen., for respondent.
PER CURIAM.
Giles was initially convicted and sentenced to death in 1979; however, his conviction and sentence were overturned, and he was granted a new trial pursuant to our holding in Beck v. State, 396 So. 2d 645 (Ala.1980). Giles v. State, 405 So. 2d 50 (Ala.Crim.App.1981). His second trial resulted in a conviction and sentence of death also. The Court of Criminal Appeals affirmed, 554 So. 2d 1073, and his petition for writ of certiorari was granted. We affirm the judgment of the Court of Criminal Appeals insofar as it affirmed the conviction, but reverse it insofar as it affirmed the sentence, and remand the cause to the Court of Criminal Appeals with instructions to remand to the trial court for a new sentencing hearing before a jury.
Defense counsel conceded in his opening statement at trial that the evidence would establish that Giles was guilty of murder. Consequently, on appeal, the defendant does not challenge the sufficiency of the evidence establishing his guilt. The defendant takes issue with pretrial rulings on change of venue, recusal, and exclusion of jurors; with prosecutorial comments to the venire; with court instructions to the jury; and with the trial court's decision during the sentencing hearing to send the jury back for further deliberations after the jury foreman informed the court that the jurors were hopelessly deadlocked.
After a careful review of all the questions raised by the defendant, we find that the only issue with merit concerns the court's response to the jury foreman's announcement that the jury was hopelessly deadlocked.
After lengthy instructions on aggravating and mitigating circumstances at the sentencing hearing, the trial court concluded its oral charge to the jury by stating:
"If you unanimously find that the State proved beyond a reasonable doubt the existence of one or more of the three aggravating circumstances that I instructed you on, and if you unanimously find that aggravating circumstance or *1091 circumstances outweighs the mitigating circumstances in this case, then you should return the form of verdict as follows: We, the Jury, fix the punishment of the Defendant, Arthur Lee Giles, at death.
The jury was then dismissed from the courtroom so that the trial court could entertain objections. Defense counsel's objection to the court's charge on the necessity of unanimity was stated and resolved as follows:
"THE COURT: All right. Then you may retire to the jury room to consider the case. You will have out with you the evidence which was introduced by the parties and the forms. We have prepared the forms of verdict here. You will have out the forms of verdict and the evidence presented to you in this case, *1092 and when you have reached a verdict, you signify that fact and we will be at the pleasure of the Jury. If you want to work tonight or want to come back tomorrow, all you have to do is let us know."
The jury retired at 6:50 p.m. and returned at 9:10 p.m., at which time the following transpired:
The defendant contends that the trial court erred in requiring the deadlocked jury to return the next morning for further deliberations. He argues that the trial court instead should have entered a sentence of life without parole. He also argues that the trial court's actions impermissibly suggested to the jury that the trial court favored a death sentence in the case. We agree with the latter contention.
The defendant was convicted and sentenced for the November 10, 1978, murders of Willene and Carl Nelson pursuant to Alabama's old death penalty statute, Code 1975, § 13-11-1 through § 13-11-8.[1] In Beck v. State, 396 So. 2d 645 (Ala.1980), the court interpreted the statute as requiring a unanimous verdict at a sentencing hearing before the jury can recommend the death sentence. The court further held that "[i]f the jury cannot agree on a sentence of death, the defendant shall be sentenced to life imprisonment without parole." Id. at 663.
In this case, the trial court instructed the jury on the effect of a non-unanimous verdict. Although the court's charge was a correct statement of law, taken directly from Beck v. State, 396 So. 2d 645, 663 (Ala.1980), it was not a proper subject of instruction for the jury. This court's explanation in Beck of the procedural and legal effect of a jury's inability to reach a unanimous verdict was directed to the trial court alone. As the Court of Criminal Appeals observed in Whisenhant v. State, 482 So. 2d 1225, 1236 (Ala.Cr.App.1982):
The jury in this case deliberated approximately two-and-one-half hours after being instructed on the effect of a non-unanimous verdict. The jurors then returned to the courtroom and told the judge that they were "hopelessly deadlocked". Conceivably, the jurors were confused by the trial court's ordering them to deliberate further. After all, this same judge had recently charged that if they were unable to agree unanimously, a sentence of life imprisonment without parole would be imposed as a *1093 matter of law. We can only speculate on what actually entered these jurors' minds; however, under the circumstances of this case, at least one juror may have changed his vote from life without parole to death because of a feeling that the judge favored the death penalty in this case.
Under Alabama law, "a trial judge may urge a jury to resume deliberations and cultivate a spirit of harmony so as to reach a verdict, as long as the court does not suggest which way the verdict should be returned and no duress or coercion is used." Showers v. State, 407 So. 2d 169, 171 (Ala.1981). In a capital case, however, under the old Alabama death penalty statute, which contemplated a unanimous jury verdict, but in its absence, provided for the imposition of a sentence of life imprisonment without parole, the mere fact that the court instructs the jury to deliberate further, after what the jury characterizes as a "deadlock" has occurred, impermissibly suggests which way the verdict should be returned.[2]
In a similar case from Delaware, Rush v. State, 491 A.2d 439, 453 (Del.1985), the court held:
Similarly, in Florida, under a statute requiring a majority verdict in order to recommend death and, in the case of a deadlocked jury, requiring the automatic imposition of a life-without-parole sentence, the court held that it was error for the trial court to send the jury back for further deliberations after they asked for instructions on how to resolve a 6-6 tie:
Rose v. State, 425 So. 2d 521 (Fla.), cert. denied, 461 U.S. 909, 103 S. Ct. 1883, 76 L. Ed. 2d 812 (1983).
Accordingly, we affirm the Court of Criminal Appeals' judgment insofar as it affirmed the murder conviction, but reverse insofar as it affirmed the death sentence, and we remand the cause to that court with instructions to remand it to the trial court for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, JONES, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur.
[1] The statute was repealed by Acts 1981, No. 81-178, § 20, effective July 1, 1981; however, conduct occurring before 12:01 a.m. on July 1, 1981, continues to be governed by pre-existing law.
[2] For a case reaffirming the significance of the jury's role in the sentencing process, see Williams v. State [MS. 86-518, Sept. 18, 1987] 556 So. 2d 744 (Ala.1987).
[3] A jury charge recognized in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896), instructing the jury on their duty to resolve their differences, come to a conclusion, and return a verdict. | September 25, 1987 |
9d949143-fd36-4a90-bcd2-fc17371605aa | Harper v. First Alabama Bank of Dothan | 514 So. 2d 1366 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1366 (1987)
Gerald HARPER and Sarah E. Harper
v.
FIRST ALABAMA BANK OF DOTHAN.
86-575.
Supreme Court of Alabama.
October 2, 1987.
*1367 Frank M. Wilson of Beasley, Wilson, Traeger, Allen & Mendelsohn, Montgomery, for appellants.
Cada M. Carter of Carter, Hall & Sherrer, Dothan, for appellee.
STEAGALL, Justice.
Gerald and Sarah Harper appeal from a summary judgment in favor of the defendant, First Alabama Bank of Dothan. We affirm.
On December 2, 1983, the Harpers filed suit against the bank for breach of contract and fraud. For several years prior to 1983 the Harpers had financed their farming operations with this bank. In February 1982, the Harpers borrowed a certain sum of money and in return executed a "master note," which they secured by crops to be grown, by a real estate mortgage on their home, and by farm equipment. During 1982 the Harpers borrowed various smaller sums of money that were secured by real or personal property or crops to be grown.
The Harpers filed a complaint against the bank that alleged fraud and misrepresentation. The complaint was based upon alleged promises by the bank to finance the Harpers' 1983 farming operations and to make a loan payment to the Massey-Ferguson Credit Corporation on behalf of the Harpers.
The bank filed a motion for summary judgment supported by excerpts from the depositions of the Harpers and an affidavit of William Cordell II, an officer of the bank. The following is from the deposition of Mr. Harper:
"Q. All right, sir. In your original complaint you also say that the bank told you they would pay the payment on the Massey-Ferguson combine; is that correct?
"Q. I'm saying the bank. When I say the bank, I'm talking about an agent.
"A. Okay. Now, he never said he would pay. He would see what he could do with it.
"A. They kept telling me if I would do this, if I would do that, if I would do this, if I would do that, they would finance me.
"A. I tried to do everything I could do, except sign my life away, put my head on the chopping block.
"Q. What do you mean by signing your life away, put your head on the chopping block?
"A. From my standpoint, I thought they was pretty well secured, with a little time.
"Q. You just didn't want to give them any other security?
"A. Well, I didn't have anything else to give them but my life insurance.
"A. No, because my family meant more to me than the bank did.
"Q. So they didn't finance you because you wouldn't do what they asked you to do?
The Harpers filed documents in opposition to the bank's motion for summary judgment. Those documents included an affidavit of Mr. Harper, additional excerpts from the depositions of the Harpers, and excerpts from the deposition of Thomas *1368 Roney, a bank officer. The following is from the affidavit of Mr. Harper:
The following testimony is from Mr. Harper's deposition:
"Q. So Mr. Roney never told you that he would finance you in '83; he told you he would if you would do certain things?
"Q. Okay. After First Alabama Bank of Dothan told you they were not going to finance you for 1983 crops, did you go anywhere else to try to borrow the money for 1983 to try to farm?
"Q. You were turned down by all these people, so you just didn't plant in '83?
"Q. Where did you get the money to plant your crop in '83?
"A. Well, Mr. Perry Thomas down at Greenfront, he furnished me my seed and fertilizer until the fall."
The following is from the deposition of Thomas Roney:
"Q. When was the decision made not to loan Mr. Harper money for the 1983 crop year?
"A. I guess maybe the final decision was made in the early part of '83. The exact date, I don't recall. But it would have been early.
"A. I made that decision. I am ultimately responsible for the decision.
"Q. At any time prior to that date had the bank intended to commit itself to loan Mr. Harper money for the 1982 [sic] crop year?
"Q. Prior to that date had the bank ever intended to loan Mr. Harper money for the 1983 crop year?
"A. There was a possibility we would. You know, we just did not have all the facts to make the decision, but we were open. We wereWe were open to the consideration of a loan."
In order to avoid the granting of a summary judgment, once the defendant has made a prima facie showing that there was no fraud, the plaintiff must present at least a scintilla of evidence on each of the following four elements of fraud: (1) a false representation; (2) concerning a material fact; (3) reliance by the plaintiff; and (4) damages as a proximate result. Bank of Red Bay v. King, 482 So. 2d 274 (Ala. 1985).
*1369 A "material fact" is a fact that induces action on the part of the complaining party. Crigler v. Salac, 438 So. 2d 1375 (Ala.1983). The Harpers assert that the material facts represented to them by the bank were that the bank would finance their farming operations for 1983 and that it would make their "Massey-Ferguson combine" payment on their behalf. However, the evidence presented by the Harpers does not show that they acted or failed to act based upon the alleged representations made by the bank. Furthermore, even if the Harpers had been induced to act based upon these alleged representations, their reliance upon these alleged representations would not have been reasonable under the circumstances. See Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413 (Ala.1980). Mr. Harper testified that the bank would have financed his farming operations for 1983 if he had agreed to certain conditions, which he would not agree to. Mr. Harper also testified that the bank's loan officer did not say the bank would make the "combine" payment but that he would see what the bank could do for him. The knowledge of these facts was sufficient to prohibit the Harpers from reasonably relying on the alleged representations of the bank. Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur. | October 2, 1987 |
be5d99b7-2334-4b04-9d91-86ae94610120 | Robinson v. Hank Roberts, Inc. | 514 So. 2d 958 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 958 (1987)
James D. ROBINSON
v.
HANK ROBERTS, INC., et al.
85-657.
Supreme Court of Alabama.
September 25, 1987.
David H. Thomas, Birmingham, for appellant.
Andrew P. Campbell of Leitman, Siegel & Payne, Charles R. Johanson III of Engel, Hairston, Moses and Johanson, Birmingham, for appellees Hank Roberts, Inc., K.G. Roberts Corp., Howard Edelman, Norma Edelman, Fleck, Inc., Chalones Roberts, and Hank Roberts.
Michael L. Edwards and Jonathan S. Harbuck of Balch & Bingham, Birmingham, for appellee Central Bank of the South.
STEAGALL, Justice.
Plaintiff James D. Robinson appeals from the judgment of the Jefferson Circuit Court in favor of all defendants. We affirm.
Robinson was employed by Fleck, Inc., a corporation that manufactured and sold fishing lures. In September 1976, the corporate stock of Fleck was sold, with the purchase agreement listing Robinson and defendant Howard Edelman as purchasers. The entire purchase amount was provided by Edelman and defendant Hank Roberts (the individual). Although Robinson did not provide any money for the purchase of stock in Fleck, he was apparently instrumental in negotiating the purchase of Fleck. Robinson received one-third of the total number of shares of Fleck stock, and Edelman received two-thirds of the shares. In January 1977, Edelman transferred his shares in Fleck to Hank Roberts, Inc., a business located in Colorado in which Roberts and Edelman were principals.
*959 Robinson managed production and sales for Fleck, but he was not involved in the financial management of the company. Robinson served as an officer and director of Fleck. Fleck obtained a line of credit from defendant Central Bank of the South (hereinafter "Central Bank"). Edelman and Robinson signed as continuing guarantors of any indebtedness of Fleck to Central Bank. Fleck obtained several loans from Central Bank, all of which were eventually repaid by Fleck or by Edelman and Roberts.
Robinson attempted to purchase the shares of Fleck held by Hank Roberts, Inc., in early 1980, but his offer was refused. In April 1980, Robinson resigned as an officer and director of Fleck and shut down the operations of Fleck. The assets of Fleck were sold in 1981 to a Massachusetts businessman.
Robinson filed suit in August 1984, alleging that the defendants wrongfuly converted the assets of Fleck; that they misappropriated Fleck funds to their own uses; that they fraudulently diverted corporate assets; that they breached their fiduciary duties as officers and directors of Fleck; that they appropriated for themselves business opportunities belonging to Fleck; that they conspired to divert the assets of the corporation; and that they disposed of corporate assets without authorization. Robinson sought damages for lost wages, lost profits, lost opportunity to make a profit, and loss of the value of his investment in the company. In addition, Robinson claimed that he had suffered emotional distress and injury to his business reputation as a result of the alleged actions of the defendants.
The trial court granted summary judgment in favor of all defendants on all claims asserted by Robinson, except the conversion claim, finding that the claims were barred by the applicable one-year statute of limitations of Code 1975, § 6-2-39.[1] with regard to the conversion claim, the trial court granted summary judgment in favor of Central Bank. The trial court found that Robinson had failed to state a claim upon which relief could be granted concerning conversion of Fleck's assets because Robinson brought an action for personal recovery for conversion rather than a derivative action on behalf of the corporation as provided by Rule 23.1, A.R.Civ.P.
The sole issue on appeal is whether Robinson's affidavit in opposition to the defendants' motions for summary judgment, which affidavit conflicted with Robinson's prior deposition testimony, was sufficient to raise a genuine issue of material fact. The trial court determined that Robinson's affidavit was not sufficient to raise factual issues due to the conflicting testimony, as shown by the following excerpt from the trial court's order:
"In part, Robinson's affidavit provides that in March of 1984, he discovered for the first time the following facts upon which his complaint is based:
"`(a) A $500,000 loan from Central Bank of Birmingham, Account No. 104592, which was made without corporate authorization nor notice to me. Said $500,000 did not go into the business of Fleck;
"`(b) A $50,000 loan from Central Bank of Birmingham, Account No. 104593, which was made without corporate authorization nor notice to me. Said $50,000 did not go into the business of Fleck;
"`(c) K.G. Roberts, a California corporation that manufactured sling shots, was purchased by defendants at the approximate time that the loans referred to in (a) and (b) above were made. The "G." in K.G. Roberts refers to the defendant, Greer;[2]
"`. . . .
"`(f) Checks drawn on Central Bank from the corporate account of Fleck signed by defendant, Howard Edelman, *960 in the total amount of $113,700 payable to Columbia Savings & Loan Association, a Colorado savings and loan. There was no corporate authorization nor notice to me of these matters. Fleck did no business with that bank. Further, it was agreed that only loan notes, but not those referred to in (a) and (b), insurance premiums and taxes, were to be paid by the defendants in Colorado;'
"Several of these statements in Robinson's affidavit of January 2, 1986, are in direct contradiction to Robinson's testimony in his May 30, 1985, deposition. For example, the following excerpts from Robinson's deposition directly and expressly contradict the statements in his affidavit:
"`Q. So you don't think Central should have made this second loan, is that what you're saying?
"`A. I don't think they should have made a $500,000 loan toI don't think they should have made the $150,000 loan based on the gross that we was grossing at that time in view of the way it turned out, because I didn't get to use any of the money to produce products with anyway.
"`Q. Did you go tell Central at the time they were making the loan that you didn't think they ought to do it?
"`A. No.
"`Q. Did you ever go tell Central you didn't think they should make any of these loans?
"`A. Yes.
"`Q. When?
"`A. In 1979, I toldwhen Chuck Greer was questioning me as to the figures in the statements and all and asked me if I was going to be able to pull that off, and I told him, no, that I was not, that I did not agree with going in for an additional $50,000 loan when I had just learned that the other loannone of the principal had been paid on it, and that I definitely didn't feel like that we needed another $50,000 because it was only going to get us in more deeper trouble.
"`. . . .
"`Q. Is it correct that as we sit here today you cannot tell me one fact supporting your charge that Central Bank diverted these funds from the corporation?
"`A. On the strength of Chuck Greer stating to me on two different occasions that he owned fifty to fifty-one percent of the K.G. Roberts stock, and then immediately the $150,000 loan is made, and that money was not used in the corporation down here, in this Birmingham operation.
"`Q. All right. Now, when did Chuck
"`A. I don't know what happened with the money.
`"Q. When did Chuck Greer tell you this?
"`A. Somewhere aroundit was in the latter part of 1979, somewhere around September or October, somewhere in that bracket.
"`Q. Almost six years ago?
"`A. When he was fixing to approve another $50,000 loan.
"`Q. So he told you in 1979?
"`A. That's correct.
"`Q. And you have known that ever since?
"`A. Yes, I have known it ever since.
"`Q. And that caused you to believe that money was diverted?
"`A. Thatyes. That wasthe fact that he was up there staying with Howard Edelman, and then all of a sudden we did not get the loan. A year later then we did have the loan. Then they purchased the K.G. [Roberts] Corporation. He says he owns fifty percent of the stock of the corporation.
"`Q. And when did you know all of these facts?
"`A. Well, Iin the latter part of '79 with Chuck Greer. It was in June or July of '79 when I learned that in fact the $150,000 had been made, back in the latter part of '78, of which I had been lied to that it had not been made.
"`Q. You have known that since then?
"`A. Known what since then?
*961 Q. You have known about this loan and you have known about Chuck Greer saying he owned stock?
"`A. I knewI did not know in fact that the loan had been made until somewhere around the middle of June or July of '79. I didn't know it for a fact then. I only knew that Howard Edelman said that it had been. I didn't know for a fact until I finally got a copy of it.
"`Q. But you had been told by Howard Edelman, one of the defendants, that the loan had been made, and you had been told that in '79?
"`A. Yes, and that all the money was gone, but I did not see any documentation or anything at that time.
"`. . . .
"`Q. What facts, whether documented or not, do you have to support that allegation you just made on the record that they diverted money from Fleck and put it in another company?
"`A. Well, I know that Edelman says that Greer spent two or three days with him up there at his home and then all of a sudden the $150,000 loan I later learned was approved and made. Immediately after this they buy the K.G. Roberts Corporation. Chuck Greer admits to me that he owns it because he got very, very scared when I refused to identify some of the figures in '79 when they were applying for another $50,000 loan.
"`Q. When did Charles Greer admit to you that he was an owner in some company?
"`A. It was the latter part of '79 when they waswhen Howard Edelman had applied for an additional $50,000 loan in addition to the $150,000, which none of the principal had been paid.
"`. . . .
"`Q. And so when Mr. Resha filed the suit in 1984, that was approximately four years after you had wanted Mr. Norwood to file basically the same suit?
"`A. Yes.'
". . . .
"It is not certain that the loans referred to in Robinson's affidavit testimony are the specific loans cited in the excerpts from his deposition testimony. In any event, Robinson's deposition testimony indicates unequivocally that he was aware that extensive loans were being taken out by the corporation. He also testified that he objected to those loans in 1979. Such explicit statements expressly undermine his affidavit testimony that he did not discover the facts upon which his complaint is based until 1984."
We agree that the statements in Robinson's affidavit are insufficient to preclude summary judgment, because they do not create a genuine issue of material fact. Rule 56, A.R.Civ.P. The affidavit is totally inconsistent with Robinson's deposition testimony regarding the time when he discovered the facts on which he bases his claims. The following language found in Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984), is applicable:
See also Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir.1975); Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir.1969). Robinson cannot be allowed to create an issue of fact by providing an affidavit that contradicts, without explanation, his prior deposition testimony.
Robinson contends that he did not learn of the specific facts on which to base a lawsuit until he received access to corporate records in March 1984. The record amply shows, however, that Robinson was aware of facts on which his claims are based more than one year prior to filing his complaint. Robinson's fraud action is barred by the limitation of Code 1975, § 6-2-39. The saving provision of Code *962 1975, § 6-2-3,[3] allowing a party one year from the discovery "of the fact constituting the fraud" in which to bring a fraud action, is not applicable under the evidence in this case. Fraud is deemed to have been "discovered" when "the party actually discovered the fraud, or had facts which, upon closer examination, would have led to the discovery of the fraud." Kelly v. Smith, 454 So. 2d 1315, 1317 (Ala.1984). From his deposition testimony, it is apparent that Robinson had knowledge of facts, more than one year before filing suit, that would, upon examination, have led him to the discovery of the fraud.
Robinson's claims for breach of fiduciary duty likewise are barred by Code 1975, § 6-2-39. Pines v. Warnaco, Inc., 706 F.2d 1173 (11th Cir.1983); see Jefferson County v. Reach, 368 So. 2d 250 (Ala.1978).
Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON, SHORES and ADAMS, JJ., concur.
[1] Section 6-2-39, Code 1975, was repealed effective January 9, 1985, and those actions governed by its one-year limitations period were transferred to § 6-2-38, the two-year statute. See Act 85-39, Alabama Acts, Second Special Session, 1984-85. The claims in the present case were barred before the effective date of Act 85-39.
[2] Chuck Greer was an employee of defendant Central Bank.
[3] Section 6-2-3 was amended, effective January 9, 1985, to extend its one-year saving clause to two years. | September 25, 1987 |
25d46b55-f951-41c0-824f-4f18bb166711 | Syx v. Midfield Volkswagen, Inc. | 518 So. 2d 94 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 94 (1987)
Lorn SYX
v.
MIDFIELD VOLKSWAGEN, INC., d/b/a Midfield Dodge, et al.
86-914.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied December 4, 1987.
*95 Stan Brobston of Brobston and Brobston, Bessemer, for appellant.
James B. Kierce, Jr., and V. Edward Freeman II of Stone, Patton, Kierce & Kincaid, Bessemer, for appellees Midfield Volkswagen, d/b/a Midfield Dodge, and Ted Cook.
John M. Fraley of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee Southeastern Fidelity Ins. Co.
HOUSTON, Justice.
The plaintiff, Lorn Syx, appeals from a summary judgment for the defendants, Southeastern Fidelity Insurance Company; Midfield Volkswagen, Inc., d/b/a Midfield Dodge (this defendant is hereinafter called "Midfield Dodge"); Ted Cook;[1] and Autry Insurance Agency, Inc., in this action seeking damages for fraud. We affirm.
The plaintiff purchased a pick-up truck from Midfield Dodge on September 4, 1984. On February 24, 1985, the plaintiff was involved in an accident with another vehicle. Thereafter, he discovered that his automobile insurance policy did not include coverage for any of the damages and injuries sustained by the other vehicle and its occupant (i.e., it did not include liability coverage). This fraud action followed.
At the time he purchased the truck, the plaintiff applied to Autry Insurance Agency, Inc., for an automobile insurance policy issued by Southeastern Fidelity Insurance Company. A representative of Midfield Dodge prepared the documents of sale, including the application for insurance. Although he was given the opportunity, the plaintiff did not read the insurance application prior to signing it. The application clearly shows that only "comprehensive and collision" coverage was applied for. The plaintiff's insurance policy was delivered by mail on or about September 27, 1984, to the address he had provided. The plaintiff testified in his deposition that, with the exception of his bills, he does not read his mail. He admitted that as of the date of the deposition, he had probably accumulated a year's worth of unread mail. Although his policy was delivered to him approximately five and a half months prior to the accident, the plaintiff did not read it. He stated in his deposition that had he read his policy, he would have known that he did not have liability coverage. He stated further that he could have read his mail, including his insurance policy, if only he "had wanted to read it."
The plaintiff claims fraud because, he says, the representative of Midfield Dodge told him at the time he purchased the truck that he was applying for "full coverage," including liability coverage. The defendants moved for summary judgment on the ground that the plaintiff did not reasonably rely on any statement that might have been made by the Midfield Dodge representative. The thrust of the defendants' argument is that because the plaintiff failed to read the insurance application he signed, either at the time he purchased the truck, or later, and thereafter refused to read the policy that was mailed to the address he had provided, he cannot recover damages for fraud, under the rationale of Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala.1983). We agree.
*96 Reasonable reliance is an essential element of a fraud action. Torres. In Torres, the plaintiffs brought suit against State Farm Fire & Casualty Company for, inter alia, an alleged misrepresentation that flood insurance would be obtained. The trial court granted a summary judgment in favor of State Farm. This Court affirmed, stating, in pertinent part, as follows:
Torres is not materially distinguishable from the present case. In Torres, the plaintiffs relied for approximately a year and a half on an alleged representation that flood coverage had been obtained. In the present case, the plaintiff relied for approximately five and a half months on an alleged representation that liability coverage had been obtained. In both Torres and the present case, the plaintiffs received nothing indicating that the desired coverage had been obtained. The plaintiffs did *97 not read their policy in Torres; the plaintiff in the present case did not read the application he signed at the time he purchased the truck, nor did he read the policy that was subsequently mailed to the address he had provided. The plaintiff in the present case could have readily understood that he was not applying for liability coverage had he only read his application. He testified in his deposition that had he read the policy that was later mailed to him, he would have known that he did not have liability coverage. Although the representation in Torres was made subsequent to a hurricane, that does not materially distinguish that case from the present one. Nor is it material that the plaintiffs in Torres relied for approximately a year longer than the plaintiff in the present case. Five months was sufficient time for the plaintiff to have discovered that he did not have liability coverage. The plaintiff made a conscious decision not to read the application or his policy.
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981). On the authority of Torres we hold, as a matter of law, that because the plaintiff in the present case was put on notice that he did not have liability coverage, his reliance on any statement to the contrary that might have been made by the representative of Midfield Dodge was unreasonable. Therefore, summary judgment in favor of the defendants was proper.
The cases relied on by the plaintiffs, Century Plaza Co. v. Hibbett Sporting Goods, Inc., 382 So. 2d 7 (Ala.1980), and Connell v. State Farm Mut. Auto. Ins. Co., 482 So. 2d 1165 (Ala.1985), are distinguishable from the present case. Century Plaza involved a shopping center lease and a dispute between the parties over what agreement was reached regarding "common area maintenance." Century Plaza, through its agent, Engel Realty, presented to Ira Hibbett several proposed leases during a two-year period prior to the opening of the Century Plaza Mall in Birmingham in August 1975. Century aggressively solicited Hibbett to open a sporting goods store in its facility. Section 28 of those proposed leases provided that a charge of thirty cents per square foot would be levied on the tenant for common area maintenance. Hibbett refused to enter into an agreement with Century Plaza at that time.
On September 29, 1975, negotiations were resumed and Engel Realty proffered to Hibbett a proposed lease. Hibbett claimed that he asked one Bennett, an agent of Engel Realty, whether Section 28 was unchanged from the earlier proposed leases, and that he was assured by Bennett there was no change, whereupon he signed the lease without reading the contested section. Bennett said he told Hibbett that he would still be charged thirty cents per square foot, but Bennett contended he was not asked whether Section 28 had been changed in the new lease. The lease Hibbett signed exempted the square footage of several of the major department stores in the mall from the formula of calculating the common area maintenance charge; therefore, Hibbett's obligation for common area maintenance was substantially higher than his obligation would have been under the leases proffered to him previously.
The trial court heard ore tenus testimony and found that Engel's agent made a material misrepresentation to Hibbett, upon which Hibbett relied to his detriment. The court found Engel's conduct to be inequitable, unconscionable, and fraudulent. The trial court reformed the lease so that the text of Section 28 as set forth in the proffered lease that was originally discussed with Hibbett was substituted for that in the executed lease. In effect, the court granted Hibbett the relief he requested.
On appeal, counsel for Century Plaza contended that, because Hibbett had had ample opportunity to review for himself the contents of the questioned instrument, he could not complain that the instrument did not represent the agreement consummated *98 by the parties. This Court disagreed, stating:
We held in Century Plaza that it was not unreasonable as a matter of law for the plaintiff to rely on the representation of the agent, because the plaintiff in that case was fully aware of what his obligation would have been under the leases as originally proposed. The plaintiff did not act unreasonably by relying on the agent's representation that Section 28 was unchanged[2] in the executed lease.
In Connell, the plaintiff, Charles Connell, sued State Farm Automobile Insurance Company and insurance agent Perry Davis for misrepresentation in the course of issuing him a policy of insurance. Connell met with Davis, who had been a State Farm agent for 19 years, for the purpose of securing a health insurance policy that would pay for a work related injury and make up for the excess beyond workmen's compensation coverage. Connell told Davis what he wanted, and Davis recommended a policy he thought would satisfy Connell. The policy would pay for a disability until age 65, and had an optional 7-, 14-, or 30-day waiting period.
Connell applied for the recommended policy with a 14-day waiting period, and paid the initial premium. Connell understood that State Farm's home office would have to approve the application. State Farm in fact did not approve the application, because the 14-day waiting period was no longer offered; and as a truckdriver, Connell did not qualify for the policy that would pay benefits in addition to workmen's compensation recovery.
State Farm apparently issued two types of disability income policies at that time. The "guaranteed renewable policy," available to doctors, lawyers, teachers, and office workers, paid benefits for injuries covered by workmen's compensation and would pay benefits until age 65. The "optionally renewable policy" was available to truckdrivers, factory workers, and others, and paid benefits for only 5 years and would not pay benefits for injuries covered under workmen's compensation.
Therefore, as a truckdriver, Connell did not qualify for the policy recommended to him by Davis and for which he had applied and paid a premium. To rectify this, State Farm made changes on Connell's application in red ink, with red ink stamped the application "amended," and returned it to Connell along with a form entitled "Amendment of Application for Health Insurance" for Connell to sign and with an optionally renewable disability income policy.
Connell signed the amendment form when Davis presented it to him. The form, *99 in pertinent part, stated: "I, Charles Connell, hereby amend my application dated August 16, 1982 as follows: Issue with a Minimum Income Period of 5 years. Issue the Optionally Renewable Disability Income Policy." In his deposition testimony Connell was asked about the circumstances of his signing the amendment. He stated that Davis did not explain to him the difference between a "guaranteed renewable policy" and an "optionally renewable policy." In reversing the summary judgment granted to the defendants, this Court stated as follows:
We held in Connell, as we did in Century Plaza, that the plaintiff's reliance on the representation of the agent was not unreasonable as a matter of law under the facts presented. The evidence in Connell showed that Connell had read the amended application; however, he could not have been expected to know that that application was, in fact, a request for coverage that excluded payment for injuries covered by workmen's compensation. Connell had informed Davis that he specifically wanted insurance that would pay disability benefits in addition to workmen's compensation benefits. Davis told Connell that he had a policy that would do that. Connell relied on this representation. Davis did not explain to Connell that the application, as amended, was not for the coverage they had previously discussed. Under these facts, it was not unreasonable as a matter of law for Connell to rely on Davis's representation that he would be issued the kind of policy he applied for. Connell is more like Century Plaza and Woodlawn Fraternal Lodge than like the present case. The plaintiff in the present case simply did not exercise any degree of precaution to safeguard his interests.
For the foregoing reasons, the defendants' summary judgment is affirmed.
AFFIRMED.
MADDOX and BEATTY, JJ., concur.
ADAMS and ALMON, JJ., concur in result.
[1] Ted Cook was the majority shareholder and a director of Midfield Dodge.
[2] Our reasoning in Century Plaza is fully consonant with our reasoning in the recent case of Woodlawn Fraternal Lodge No. 525, F. & A.M. v. Commercial Union Ins. Co., 510 So. 2d 162 (Ala. 1987). In that case we held that because the law casts the burden on an insurer to notify the insured if a renewal policy's terms differ from the original policy, the insured's reliance on the insurer's statements that coverage is the same under the renewal policy is not unreasonable, as a matter of law. In other words, if an insured knows the terms of his original policy, it is not unreasonable for him to rely on the insurer's representation that the renewal policy has not been changed. | October 2, 1987 |
94d9bf93-6c7b-41aa-aa57-a3576eb676e1 | MacKinnon v. St. Louis Southwestern Ry. Co. | 518 So. 2d 89 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 89 (1987)
Ruth Langston MacKINNON
v.
ST. LOUIS SOUTHWESTERN RAILWAY CO.
86-694.
Supreme Court of Alabama.
October 2, 1987.
Rehearing Denied November 25, 1987.
*90 Robert S. Ramsey and Charles J. Fleming of Ramsey, Flynn & Middlebrooks, Mobile, for appellant.
Jerry A. McDowell and Walter T. Gilmer, Jr. of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
Walter R. Byars of Steiner, Crum & Baker, Montgomery, for amicus curiae CSX Transp., Inc.
MADDOX, Justice.
The sole issue presented in this appeal is whether St. Louis Southwestern Railway Company had sufficient minimum contacts with this state to authorize a circuit court in Mobile County to acquire in personam jurisdiction over it. The trial court determined that it did not have in personam jurisdiction and dismissed the case. We reverse and remand.
Ruth Langston MacKinnon filed this action in the Circuit Court of Mobile County against her employer, St. Louis Southwestern Railway Company ("St. Louis Southwestern"), under the Federal Employers Liability Act (FELA). MacKinnon alleged that she injured herself attempting to get out of her chair at St. Louis Southwestern's Shreveport, Louisiana, office where she was employed. St. Louis Southwestern filed a motion to dismiss, in which it claimed the Circuit Court of Mobile County *91 lacked personal jurisdiction over it and that venue was improper. After a hearing, the trial court granted the motion to dismiss, and entered an order stating that it granted the motion to dismiss because it found that it did not have personal jurisdiction over St. Louis Southwestern. MacKinnon appeals from that judgment.
St. Louis Southwestern incorporated under the laws of the state of Missouri and has its principal place of business in Tyler, Texas. St. Louis Southwestern is a wholly owned subsidiary of the Southern Pacific Transportation Company ("Southern Pacific"). Southern Pacific is incorporated under the laws of Delaware and has its principal place of business in San Francisco, California. St. Louis Southwestern is not qualified to do business in Alabama and has no statutory agent in Mobile.
St. Louis Southwestern does not own any railroad tracks, does not operate any trains in Alabama. Neither St. Louis Southwestern nor Southern Pacific had earnings, nor derived revenues, from any transportation business conducted in Alabama during 1983, 1984, 1985, or 1986. Southern Pacific leases an "off-line sales office" in Birmingham under the name Southern Pacific Transportation Company. The personnel of this office solicit freight business on behalf of St. Louis Southwestern and Southern Pacific. The sales personnel solicit the transportation of freight to be moved outside of Alabama through an interchange agreement with another railroad not related to St. Louis Southwestern or Southern Pacific. St. Louis Southwestern and Southern Pacific realizes revenue from this type of business once it is interchanged at some point outside of the state.
St. Louis Southwestern and Southern Pacific also have interchange trailer agreements with business entities for the interchange of trailers at points outside of this state. Under these agreements, a separate entity has the sole custody, control, and responsibility for an interchanged trailer. St. Louis Southwestern and Southern Pacific have no control over this separate entity.
All freight business solicited in Alabama is business that is interchanged to St. Louis Southwestern at some point outside of the state of Alabama. Freight is interchanged from another company, one totally unrelated to St. Louis Southwestern or Southern Pacific, and one over which St. Louis Southwestern and Southern Pacific have no control.
St. Louis Southwestern has not owned an interest in any property in Alabama in the past five years. It has not entered into any contract for the purchase or sale of merchandise within the state of Alabama during the past five years. It has not owned, leased, or otherwise maintained a warehouse or other storage facility or a truck and trailer storage, receiving, and shipping yard within the state of Alabama during the past five years. St. Louis Southwestern has not shipped any merchandise into or out of the state of Alabama on consignment during the past five years.
Because of these facts, St. Louis Southwestern contends that the trial court correctly concluded that it lacked in personam jurisdiction over St. Louis Southwestern. At first blush, it would appear the railroad is correct, but we conclude that the activities performed in Alabama do grant Alabama courts "in personam" jurisdiction over it.
A state's inquiry into the reasonableness of its exercise of jurisdiction over a nonresident foreign corporation must focus in each case on a qualitative analysis of the foreign corporation's contacts with the forum state. Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977). In each case, personal jurisdiction "stands or falls on the unique facts of that case." Ex parte I.M.C., Inc., 485 So. 2d 724, 725 (Ala.1986). Determining the full reach of jurisdiction necessitates weighing the facts of each case and precludes the use of "clear-cut jurisdictional rules" and "talismanic jurisdictional formulas." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86, 105 S. Ct. 2174, 2189-90, 85 L. Ed. 2d 528 (1985).
Rule 4.2(a)(2), Ala.R.Civ.P., sets forth a single-step analysis for determining questions *92 of personal jurisdiction: whether the assertion of jurisdiction meets federal due process standards. Duke v. Young, 496 So. 2d 37 (Ala.1986); Semo Aviation, Inc. v. Southeastern Airways Corp., 360 So. 2d 936 (Ala.1978). Specifically, Rule 4.2(a)(2)(I), Ala.R.Civ.P., provides:
The due process clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant. Kulko v. Superior Court of California, 436 U.S. 84, 96 S. Ct. 1690, 56 L. Ed. 2d 132 (1978).
The propriety of in personam jurisdiction is premised on the mandate that a nonresident defendant corporation have sufficient "minimum contacts" with this state. The judiciary has reiterated that, to satisfy due process, in order for a state to assert jurisdiction, a nonresident corporate defendant must have "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, 1872, 80 L. Ed. 2d 404 (1984), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945). As further announced by the United States Supreme Court, the ultimate tests of in personam jurisdiction are "reasonableness, fairness, and substantial justice." International Shoe, supra, 326 U.S. at 316, 66 S. Ct. at 158. Alabama courts have adopted this language. See Alabama Power Co. v. VSL Corp., 448 So. 2d 327 (Ala.1984); Garrett v. Key Ford, Inc., 403 So. 2d 923 (Ala. Civ.App.1981). This Court has also reiterated that the proper inquiry for determining if the maintenance of a suit offends constitutional due process centers on fairness and convenience, Mann v. Frank Hrubetz Co., 361 So. 2d 1021 (Ala.1978). The "minimum contacts" requirement mandates "a balancing test and may not be mechanically applied." Hales v. First Appalachian Corp., 494 F. Supp. 330, 338 (N.D.Ala.1980).
This Court, in Alabama Waterproofing Co. v. Hanby, 431 So. 2d 141 (Ala. 1983), stated the following:
431 So. 2d at 145. The Hanby Court placed great value on the United States Supreme Court's analysis in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). This Court agrees with the statement in World-Wide Volkswagen that "the foreseeability that is critical to due process analysis ... is that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567, *93 quoted in Brooks v. Inlow, 453 So. 2d 349, 357 (Ala.1984). This Court recently discussed the critical importance of the foreseeability test. In Duke v. Young, 496 So. 2d 37, 39 (Ala.1986), this Court stated:
The Supreme Court explained in World-Wide Volkswagen that this "fair warning" requirement
444 U.S. at 297, 100 S. Ct. at 567.
Considering the requirements of "minimum contacts," this Court stated in View-All, Inc. v. United Parcel Service, 435 So. 2d 1198, 1201 (Ala.1983):
MacKinnon contends that Congress has mandated that if St. Louis Southwestern has a corporate presence in Alabama, then in the absence of a statute precluding jurisdiction Alabama courts must be open to FELA plaintiffs attempting to sue it. The FELA "does not purport to require state courts to entertain suits arising under it." Missouri v. Mayfield, 340 U.S. 1, 71 S. Ct. 1, 95 L. Ed. 3 (1950). But Congress has established that a plaintiff may bring an action only in the following forums: where the cause of action arose; where the defendant resides; or where the defendant is doing business at the time of commencing the action. 45 U.S.C.A. § 56 (1986). In Miles v. Illinois Central R., 315 U.S. 698, 62 S. Ct. 827, 86 L. Ed. 1129 (1942), the Supreme Court established that "the permission granted by Congress to sue in state courts [on a claim arising under the FELA] may be exercised only where the carrier is found doing business." 315 U.S. at 705, 62 S. Ct. at 831 (emphasis added). The court in Miles restricted the forums within which a plaintiff may bring an FELA claim to those in which a railroad is actually doing business. 315 U.S. at 702, 62 S. Ct. at 829. "Doing business," as defined by the Supreme Court and other lower federal courts, "means actually carrying on railroading by operating trains and maintaining traffic offices within the territory of the court's jurisdiction." 315 U.S. at 702, 62 S. Ct. at 829 (emphasis added). The court in Fraley v. Chesapeake & O. Ry., 294 F. Supp. 1193, at 1203 (W.D.Pa.1969), noted that "[t]he legislative history indicates that Congress meant to enable suits to be brought wherever the railroad was... `actually carrying on railroading.'" (Emphasis added.)
We are aware that the mere solicitation of business, without more, does not confer jurisdiction in FELA cases, Green v. Chicago, B. & Q.R.R., 205 U.S. 530, 533-34, 27 S. Ct. 595, 596, 51 L. Ed. 916 (1907); People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 87, 38 S. Ct. 233, 235, 62 L. Ed. 587 (1918); Philadelphia & Reading R. v. McKibbin, 243 U.S. 264, 268, 37 S. Ct. 280, 281, 61 L. Ed. 710 (1917), but we are of the opinion that the defendant's business shown to have been done in Alabama in this case has more than mere solicitation, and is sufficient to invoke jurisdiction under FELA. In short, we are of the opinion that, under the facts of this case, and based upon later decisions of the Supreme Court of the United States on what constitutes the doing of business, the activity of St. Louis Southwestern in this state is sufficient to show that it was "actually carrying on railroading" in this state. For the above reasons, the judgment of the trial court is due to be, and it hereby is, reversed.
REVERSED AND REMANDED.
*94 JONES, ALMON, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur.
TORBERT, C.J., and STEAGALL, J., not sitting.
MADDOX, Justice.
St. Louis Southwestern filed an application for rehearing, in which it makes four arguments: (1) that the opinion failed to follow well-established United States Supreme Court precedent in this FELA case; (2) that the opinion failed to set forth the salient facts that allegedly supported the Court's decision; (3) that the decision promulgates bad policy and casts an impermissible burden upon railroads that merely solicit business in Alabama; and (4) that this decision required St. Louis Southwestern Railway Company to litigate this FELA claim in Alabama in violation of federal due process standards.
We find that the arguments made by St. Louis Southwestern on rehearing are basically the same arguments that were made in its brief on appeal; therefore, we overrule its application for rehearing.
On rehearing, CSX Transportation, Inc. ("CSX"), a stranger to the litigation, has moved this Court, pursuant to Rule 29, Ala.R.App.P., for leave to file an amicus curiae brief. CSX states that this Court's opinion "could be misleading and could have a serious adverse effect upon this Court's correct interpretation and construction of forum non conveniens and subject matter jurisdiction over foreign FELA causes of action under § 6-4-430, Code of Alabama 1975, as amended by Act 87-182, Acts of Alabama 1987, which became effective on June 11, 1987." CSX asks this Court to clarify certain language in the opinion in this case. CSX states that the following language could be misleading: "The court in Fraley v. Chesapeake & O. Ry., 294 F. Supp. 1193, at 1203 (W.D.Pa. 1969), noted that `[t]he legislative history indicates that Congress meant to enable suits to be brought wherever the railroad was ... "actually carrying on railroading."'" (Emphasis added by this Court in its original opinion.)
Nothing contained in the original opinion of this Court should be construed as requiring state courts to exercise subject matter jurisdiction over an FELA claim arising out of an incident that occurred outside the State of Alabama involving a plaintiff who neither resides in nor is domiciled in Alabama. Missouri v. Mayfield, 340 U.S. 1, 71 S. Ct. 1, 95 L. Ed. 3 (1950). This suit did not involve the validity or application of the doctrine of forum non conveniens.
OPINION EXTENDED; APPLICATION OVERRULED.
JONES, ALMON, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur.
TORBERT, C.J., and STEAGALL, J., not sitting. | October 2, 1987 |
84b80fe4-6479-4c51-b344-ac0176a8890a | Gary v. Kirkland | 514 So. 2d 970 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 970 (1987)
Paul GARY and Mitsuko Gary
v.
Kenneth KIRKLAND.
86-39.
Supreme Court of Alabama.
September 25, 1987.
*971 J. Huntley Johnson of Johnson, Huskey, Hornsby & Etheredge, Dothan, for appellants.
Peter A. McInish and Huey D. McInish of Lee & McInish, Dothan, for appellee.
MADDOX, Justice.
This is a fraud case. The plaintiffs, Paul and Mitsuko Gary, entered an agreement to purchase a convenience store from the defendant, Kenneth Kirkland, who was the owner and operator of the store at the time. The agreement was made in the form of a deposit agreement and an agreement of sale drawn up on January 9, 1984. As a part of the agreement, Kirkland was to sell the inventory and equipment in the store on the date of closing. The price of the inventory was to be "retail [price] less 28 percent." Of the $32,000 purchase price, $19,000 was to be for the inventory. The deal was closed on Monday, February 6, 1984. At that time, an inventory of the store's stock was taken while both plaintiffs were in the store. The inventory indicated that the store's stock did not equal $19,000 and the purchase price was accordingly reduced by $791.11 to $31,208.89.
After the Garys began operating the store, they learned that certain items of the inventory had been marked up excessively; that some items had been marked up immediately before the sale of the store; and that a large number of items had passed their expiration dates. They also found that some of the expiration dates had been altered or concealed.
The Garys filed suit against Kirkland, claiming actual and punitive damages. The jury returned a verdict in favor of the plaintiffs on May 6, 1986, in the sum of $40,000. Judgment was entered accordingly and Kirkland then moved for judgment notwithstanding the verdict (JNOV) or in the alternative for a new trial. The trial judge granted the JNOV but did not rule on the motion for a new trial. The Garys filed a motion to alter, amend, or vacate the judgment and a motion for a new trial. It is from the denial of these motions that the Garys appeal.
Before turning to the facts of this particular case, we set out our standard of review in JNOV cases. A motion for JNOV should be denied if there is any conflict in the evidence for the jury to resolve, and the existence of such a conflict is to be determined by the scintilla rule. Handley v. City of Birmingham, 475 So. 2d 1185, 1187 (Ala.1985); Elrod v. Ford, 489 So. 2d 534, 537 (Ala.1986). On review of a JNOV, the evidence must be viewed in a light most favorable to the non-moving party. Wadsworth v. Yancey Bros. Co., 423 So. 2d 1343, 1345 (Ala.1982).
In his order, the trial judge stated that the case was being tried on a suppression theory, that is, that Kirkland had suppressed material facts; the judge had charged the jury on that basis.
The code section applicable to this fraud action is Code 1975, § 6-5-102:
*972 The trial judge properly recited the elements necessary to support a cause of action under this code section: (1) A duty to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; and (4) action by the plaintiff to his injury. Wilson v. Brown, 496 So. 2d 756, 759 (Ala. 1986). Resolution of this case hinges on the first elementwhether a duty to disclose facts existed. The statute presents two situations in which a duty to disclose arises: where a confidential relationship is present, and where there are "particular circumstances of the case." Code 1975, § 6-5-102.
This Court has had occasion to deal with this issue in the past. Under § 6-5-102, mere silence is not fraud unless confidential relations or special relations, or special circumstances exist; active concealment or misrepresentation must be present. Berkel & Co. Contractors v. Providence Hospital, 454 So. 2d 496, 505 (Ala.1984).
The trial judge correctly pointed out that the Garys had two opportunities to inspect the merchandise at the store.
We disagree with the trial judge. Evidence was presented at trial from which the jury could infer that the defendant employed artifice or trickery to defraud the Garys. When even a scintilla of evidence is present, in favor of a non-moving party, a JNOV is improper. Under Alabama law, a scintilla is described as "a mere gleam, glimmer, a spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint." Howard v. Crowder, 496 So. 2d 31 (Ala.1986).
A former employee of Kirkland testified that she had been in the store on Sunday, February 5 (the day before the sale) and that when she returned on Monday afternoon (after the sale) prices on two specific items (sunglasses and beef jerky) had been marked up substantially. She also testified that other items she could not name specifically had been marked up.
The same employee testified that she was told to put labels over the expiration dates of some products and to put some outdated items back on the store shelves, and that she had been instructed by another store employee to use nail polish remover to take expiration dates off of other products. The acts occurred between the time the agreement was reached and the date the transaction was closed and the Garys took possession of the store and the inventory. There was also testimony to the effect that Kirkland was aware of the alteration of the expiration dates.
Plaintiff Paul Gary testified that he had found 70 cases of out-of-date food items in the store after the sale. He also testified that the prices of some of the items in the store were inflated to a great degree.
Viewing these facts in the light most favorable to the plaintiffs, we hold that the plaintiffs presented much more than a scintilla of evidence on the necessary elements of the cause of action: (1) This case presented special circumstances due to the changing of the expiration dates on some items and increasing the sales price of some items immediately before the transfer of the store, so that a duty to disclose existed; (2) the changing of prices and expiration dates was a concealment of material facts; (3) the plaintiffs were induced to act (i.e., to pay for the inventory) because of the concealment; and (4) the plaintiffs were injured by having to pay to replace the out-of-date merchandise and loss of customer goodwill.
While the evidence in the case is not uncontradicted, and while the jury may have chosen to disbelieve any or all of it, they apparently did not, and evidence existed *973 to indicate fraudulent suppression on the part of Kirkland. This suppression could have resulted in an inflated value of the inventory at the time of purchase. Viewing the evidence in the light most favorable to the plaintiffs, we reverse the JNOV.
In view of the fact that the trial court failed in the instant case to make the required conditional ruling on the alternative motion for a new trial, we have examined the record, and we order the trial court to reinstate the jury verdict. In the recent case of Luker v. City of Brantley, [MS. 85-208, Jan. 9, 1987] (Ala.1987), the options in this situation were presented:
"`Where the trial court granted the motion for judgment n.o.v., but failed to rule on the motion for new trial, and the appellate court reverses the entry of judgment n.o.v., the appellate court may then: (1) order entry of judgment on the verdict; (2) order a new trial; or (3) remand the case to the trial court for reconsideration of the motion for new trial.'
Luker v. City of Brantley, [MS. 85-208, Jan. 9, 1987] (Ala.1987).
We have examined the grounds set out in the appellant's "motion for judgment notwithstanding the verdict or, in the alternative, for a new trial," and we are satisfied, based on a review of the facts and circumstances of this case as presented on this appeal, that there was no ground[1] stated in the motion for a new trial that would have authorized the trial court to grant a new trial. Regarding the ground that "[t]he evidence presented by plaintiffs was insufficient to support the verdict and judgment entered by the Court," we are of the opinion that the following principle is applicable:
Jawad v. Granade, 497 So. 2d 471, 477 (Ala. 1986).
We reverse the J.N.O.V. and remand this case to the trial court and order the entry of judgment on the jury verdict, because there was no ground stated that would have authorized the trial court to grant a motion for a new trial, and because it is easily perceivable from the record that the jury verdict is supported by the evidence.
REVERSED AND REMANDED, WITH DIRECTIONS.
JONES, SHORES and HOUSTON, JJ., concur.
BEATTY, J., concurs in the result.
[1] Many of the grounds of the motion for new trial were based on an alleged insufficiency of the evidence to prove the claims made by the plaintiffs. | September 25, 1987 |
1dbd76a7-0c11-4446-bf54-2ea99c4f2479 | BD. OF TRUSTEES OF U. OF ALA. v. Calhoun | 514 So. 2d 895 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 895 (1987)
BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA
v.
John C. CALHOUN, Jr., as administrator of the estate of Myrtle Crouch Bourziel.
86-98.
Supreme Court of Alabama.
September 11, 1987.
*896 Robert L. Potts, George B. Gordon, and Robert H. Woodrow, Jr., Tuscaloosa, for appellant.
John C. Calhoun, Jr., Birmingham, pro se.
Thomas E. Reynolds of Haskell, Slaughter & Young, Birmingham, as Guardian ad Litem for the unknown and unascertained heirs of Myrtle Crouch Bourziel.
Rufus O. Jefferson and Richard Burton Bush, Tallahassee, Fla., amicus curiae in support of appellee Nellie Rainey Gardner, a potential heir of Myrtle Crouch Bourziel.
SHORES, Justice.
This is a will contest case. The Board of Trustees of the University of Alabama (hereinafter "Trustees"), the proponents of the will, appeal from an order of the Probate Court of Jefferson County holding that Myrtle Crouch Bourziel had revoked her 1983 will and 1985 codicil by removing the signature page from the instrument and thus died intestate. We affirm.
The evidence shows that Mrs. Bourziel was an astute and strong-willed lady until she suffered a stroke when she was over 90 years old. She was an officer in the Birmingham chapter of the Society of Corrosive Engineers, and was in the business of selling coke breeze, a substance used to slow down the process of corrosion of underground pipes.
Mrs. Bourziel executed wills in 1973, 1978, and 1983, with a codicil added in 1985. Each of these wills provided for the establishment of a scholarship fund, which was to be the primary beneficiary of her estate. This scholarship fund was designed to encourage the study of corrosion as it affects metallurgical engineering. The recipients were to be students in the upper half of their class at the University of Alabama, the University of Alabama at Birmingham, or Auburn University.
The will executed by Mrs. Bourziel, and witnessed by Jane Self and George Summers, on August 11, 1983, expressly revoked all prior wills and codicils. In January 1985, Mrs. Bourziel executed a first codicil to her will of August 11, 1983.
During the late summer of 1985, Mrs. Bourziel suffered a stroke and entered into an irreversible coma, resulting in her death on November 25, 1985. On September 24, 1985, during the period in which Mrs. Bourziel was comatose, Mr. John C. Calhoun, who had prepared the 1983 will and who is a party herein as the administrator of Mrs. Bourziel's estate, together with Mr. Sam Elliott entered Mrs. Bourziel's safe deposit box in search of her 1983 will. They found the will intact, except for the last page of *897 the will, which had contained the signature of Mrs. Bourziel and the signatures of the witnesses to her signature. The last page of the will had been removed from the document and was not in the safe deposit box. Also, the January 1985 codicil was not found with the remainder of the 1983 will. The remainder of the 1983 will was intact and unmarked, with the exception of page 5 of the will, where a line had been drawn through the provisions of Article 6.
Mr. Calhoun and Mr. Elliott then searched the residence of Mrs. Bourziel, but did not find the missing page of the will or the codicil among her belongings.
The issue before us is whether the Probate Court of Jefferson County erred in denying admission of the 1983 will to probate on the ground that Mrs. Bourziel had effectively revoked the will by removing the signature page. Additionally, the Trustees contend that the doctrine of lost wills is applicable and that they have rehabilitated the 1983 will.
In Alabama, any person over the age of 18 who is of sound mind may make a will, Ala.Code (1975), § 43-8-130, and the statutory requirements for the execution of a will are minimal. The will must be: 1) in writing; 2) signed by the testator or in the testator's name by some other person in the testator's presence and by his directions; 3) signed by at least two other persons, each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. Ala.Code (1975), § 43-8-131.
It is undisputed that on August 11, 1983, Mrs. Bourziel executed an effective will which properly revoked all prior wills and codicils, according to the provisions of § 43-8-136(a).
Since the statute provides the only methods by which a will can be revoked, the 1983 will remained in effect and should have been admitted to probate unless it was effectively revoked by strict adherence to the requirements of § 43-8-136. Anderson v. Griggs, 402 So. 2d 904 (Ala. 1981). Therefore, the issue for our resolution is whether the physical act of removing and discarding the signature page from the body of the will, accompanied by the requisite statutory intent, complies with the statutory requirements of revocation sufficiently to revoke the remainder of the document. Section 43-8-136(b) sets out the actions that can cause the revocation of a will:
This statute clearly contemplates two essential elements in order to effectuate a revocation of a will. There must be 1) performance of one or more of the specified acts to a degree that materially and permanently destroys the efficacy of the document, and 2) the testator must intend for the act to revoke the will. One without the other is insufficient to effectively revoke a will.
The first step of this process is to determine whether the removal of the signature page is an act sufficient to revoke a will. Our prior cases, e.g., Anderson v. Griggs, 402 So. 2d 904 (Ala.1981); Barksdale v. Pendergrass, 294 Ala. 526, 319 So. 2d 267 (1975); Woodruff v. Hundley, 127 Ala. 640, 29 So. 98 (1900); Law v. Law, 83 Ala. 432, 3 So. 752 (1887), primarily address the issue of what constitutes a "material mutilation," and these cases are cited by both parties as authority supporting their arguments. The issue in this case is whether the act of removing the signature page revoked the will.
As previously stated, the statutory requirements to execute a will are minimal. However, one of the essential elements is the signature of the testator, or a substitute as provided for by statute, § 43-8-131. Without the signature of the testator, the document fails to satisfy the statutory requirements and there can be no will.
Although we find no Alabama case directly on point, the Appellee's excellent *898 brief, filed on behalf of the guardian ad litem for the unknown and unascertained heirs of Myrtle Crouch Bourziel, provides us with citations to several compelling decisions from other jurisdictions.
In the case of Evans's Appeal, 58 Pa. 238 (1868), the court was called upon to determine whether a will had been revoked where the signature of the testator had been erased from the end of the document. The court affirmed a finding that the testator intended to repeal his will:
The rationale for such a conclusion was stated therein as follows:
The Court of Appeals of Kentucky confronted a similar situation in Sanders' Administrator v. Babbit, 106 Ky. 646, 51 S.W. 163 (1899), where the court stated:
The Supreme Court of Illinois has stated that the removal of the signature from a will is an effective method of revoking. The court stated, in the case of In re Bakhaus' Estate, 410 Ill. 578, 102 N.E.2d 818 (1951):
In the case of Sanderson v. Norcross, 242 Mass. 43, 136 N.E. 170 (1922), the Supreme Judicial Court of Massachusetts ruled upon the validity of a will submitted to probate which had been found in the testator's safe with the signature scratched out and with lines drawn through the names of the witnesses and through two bequeathing paragraphs in the body of the instrument. The court stated: "The scratching out of the signature of the deceased and the drawing of the lines through those of the witnesses constitute a cancellation."
The act of the testator in cutting out, erasing, or otherwise obliterating his signature on the instrument, or the removal of the signature page, is sufficient to revoke the entire will, when performed with such intent. Gay v. Gay, 60 Iowa 415, 14 N.W. 238 (1882); Succession of Muh, 35 La.Ann. 394 (1883); Re Hopkins' Will, 172 N.Y. 360, 65 N.E. 173 (1902); Cutler v. Cutler, 130 N.C. 1, 40 S.E. 689 (1902). Such an act strikes at the existence of the whole instrument. Succession of Muh, 35 La.Ann. 394 (1883).
Having found that the removal of the signature page is sufficient under Ala.Code (1975), § 43-8-136(b), to revoke the entire will, we must next determine whether the evidence supported the conclusion that Mrs. Bourziel intended by this act to revoke the entire will.
The fact that the signature page of the will was detached and missing created a rebuttable presumption of animo revocandi. This Court stated in Barksdale v. Pendergrass, 294 Ala. 526, 319 So. 2d 267 (1975):
In the present case, the will was in the possession and control of Mrs. Bourziel; therefore, under the law expressed above, it is presumed that the missing signature page was removed and destroyed with the intention of revoking the will. Since the signing by the testator and the witnesses goes to the very heart of the existence of the instrument and is that portion of the instrument that gives life and effect to the instrument as a will, it is presumed that the removal of the signature page revoked the entire will.
The remaining issue to be resolved regarding the revocation of the will is whether the Trustees produced sufficient evidence to rebut the presumption of revocation. The Trustees argue that the intent to die testate and to leave the bulk of her estate to the universities is manifested by the fact that Mrs. Bourziel had executed previous wills that contained similar bequests. We agree with the Trustees that the provisions of the various wills indicate that at one time Mrs. Bourziel intended to establish a substantial scholarship fund; however, the 1983 will, standing alone, would support this contention. Even if this was Mrs. Bourziel's intention from the time she executed the will in 1973 until after she executed the codicil in January 1985, this does not indicate Mrs. Bourziel's intent at the time the signature page was removed, and it is insufficient to overcome the presumption that at the time the signature page was removed Mrs. Bourziel intended to revoke her entire will.
We conclude that the Trustees failed to rebut the presumption of revocation and that Mrs. Bourziel effectively revoked her 1983 will.
Barksdale, supra, details the requirements the proponent of the will must satisfy in order to probate a lost or destroyed will. One of the prerequisites of the lost wills doctrine is the nonrevocation of the instrument by the testator. Having determined that the probate court properly found that Mrs. Bourziel revoked her 1983 will, we hold that the lost wills doctrine is precluded by its own definition.
For all of the foregoing reasons, the order of the Probate Court of Jefferson County is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and HOUSTON, JJ., concur. | September 11, 1987 |
85daf765-b1c3-4b25-908d-ee2e11a9283e | Ex Parte Cason | 515 So. 2d 725 | N/A | Alabama | Alabama Supreme Court | 515 So. 2d 725 (1987)
Ex parte Austin CASON.
(Re Austin Cason v. State of Alabama).
86-1173.
Supreme Court of Alabama.
September 18, 1987.
Arthur Parker, Birmingham, for petitioner.
Don Siegelman, Atty. Gen., for respondent.
MADDOX, Justice.
Writ denied. Because we find no error to reverse with respect to the trial court's failure to instruct the jury on the lesser included offense of criminally negligent homicide, this writ is denied. A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy. See Hamilton Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 36 S. Ct. 269, 60 L. Ed. 629 (1916).
As we understand the opinion of the Court of Criminal Appeals, 515 So. 2d 721, that court applied the "harmless error" rule to the trial court's failure to instruct the jury on criminally negligent homicide, based upon all the facts and circumstances of this case. In denying certiorari, we should not be understood as agreeing that the trial court committed error in refusing the requested charge on the lesser included offense, but that the accused was not entitled to have the jury so charged because of the particular facts and circumstances presented here. Because the evidence here was insufficient to entitle the petitioner to have the jury so charged, the failure of the trial court to give the requested charge was not error under the particular facts and circumstances of this case.
WRIT DENIED.
JONES, SHORES, BEATTY and HOUSTON, JJ., concur. | September 18, 1987 |
18ced7e3-2aad-4c4b-98e5-a7cecfd2f06b | Lanier v. City of Newton | 518 So. 2d 40 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 40 (1987)
Randall E. LANIER
v.
CITY OF NEWTON, Alabama, etc.
86-515-CER.
Supreme Court of Alabama.
September 18, 1987.
Rehearing Denied December 4, 1987.
*41 Randall E. Lanier, pro se.
Lawrence A. Anderson, Huntsville, for appellant.
Joseph W. Adams, Ozark, for appellee.
Walter Record, Huntsville, for amicus curiae City of Huntsville.
HOUSTON, Justice.
This Court consented to answer the following questions certified by the United States Court of Appeals for the Eleventh Circuit 807 F.2d 922:
*42 3. "If the answer to question (2) is no, then is Ordinance 84-1 inconsistent with State law, in particular with Ala. Code [1975,] § 28-3A-11 and with Alabama [Alcoholic Beverage Control Board] Rule and Regulation 20-X-6-.12, because, for example, the Ordinance prohibits activities permitted under State law or because the municipality is imposing fines and jail sentences not provided for under State law?"
Our answer to each part of question 1 is yes. Our answer to question 2 is no, but see our discussion of Section 2(c) of the ordinance, in which we find this section of the ordinance to be unreasonable. Our answer to question 3 is no.
The general Alabama Alcoholic Beverage Control Board regulation prohibiting obscene, lewd, or indecent conduct in establishments selling alcoholic beverages within the State of Alabama is as follows:
The ordinance adopted by the Town of Newton extended the prohibitions within establishments selling alcoholic beverages to include the following:
"Section 2 Nudity, sexual conduct prohibited.
Is this inconsistent with Regulation 20-X-6-.12? We think not.
The Alabama Constitution of 1901, Article 4, § 89, states:
*43 Municipalities have been given legislative authority by § 11-45-1, Code of Alabama 1975. This section reads as follows:
The constitution compels us to interpret the emphasized portion of the foregoing code section (setting out what is commonly known as the "police power") as being subject to the constitutional restriction that any ordinance adopted by authority of such police power must not be inconsistent with the general laws of the State.
"Inconsistent" is defined by Black's Law Dictionary (5th ed. 1979) as "[m]utually repugnant or contradictory; contrary, the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other." It implies "contradiction qualities which cannot coexistnot merely a lack of uniformity in details." City of Montgomery v. Barefield, 1 Ala.App. 515, 523, 56 So. 260, 262 (1911).
In Gadsden Motel Co. v. City of Attalla, 378 So. 2d 705 (Ala.1979), this Court held that an ordinance prohibiting the sale of alcoholic beverages within the City or its police jurisdiction between 12:01 a.m. and 6:00 a.m. on any secular day was not inconsistent with a regulation promulgated by the Alabama Alcoholic Beverage Control Board requiring its licensees to discontinue sales, and close at 12:00 midnight Saturday until 12:01 a.m. Monday and on election days until after the polls close.
Judge DeCarlo, writing for the Court of Criminal Appeals of Alabama, in Congo v. State, 409 So. 2d 475, 478, (Ala.Cr.App. 1982), cert. denied, 412 So. 2d 276 (Ala. 1982), wrote:
We do not find that Alabama Alcoholic Beverage Control Board Regulation 20-X-6-.12 preempted the field of regulating what attire could be worn or what activities could take place in establishments licensed to serve liquor. The regulation expressly prohibited certain lack of attire and certain acts. The ordinance enacted by the Town of Newton is not inconsistent with this; it merely prohibits the lack of attire on portions of the anatomy that were not addressed by the Board. This ordinance is not repugnant or contradictory to the Board's regulation. The ordinance does not in any way abrogate or abandon the regulation. Gadsden Motor Co. v. City of Attalla, supra.
*44 We will not, by judicial fiat, declare as unreasonable or arbitrary the ordinance adopted by the elected officials of Newton that prohibits a "female person" from exposing to public view in "an establishment dealing in alcoholic beverages" any portion of her breasts below the top of the areola (Section 2(b)), or prohibits a person maintaining, owning, or operating such an establishment from allowing such exposure (Section 2(d)). The prohibition is anatomically specific.
However, we do find Section 2(c) of the ordinance unreasonable. This purports to prohibit liquor licensees from suffering or permitting any person to expose to public view "his or her cleavage" in an establishment "dealing in alcoholic beverages." Cleavage is "the depression between a woman's breast esp. when made visible by the wearing of low-cut dresses," Webster's Third New International Dictionary (1971), or "the separation between a woman's breasts," American Heritage Dictionary of the English Language (1969). It is unreasonable to expect a liquor licensee, from the ordinance as written, to know how high a woman's dress must be cut to keep her from exposing to public view "her cleavage." "[H]is ... cleavage" is mutually repugnant as "cleavage" is now defined. For fear that the courts may "unsex"[1] the word, liquor licensees would have to second guess the courts to know what kind of shirts they must require male employees or customers to wear. The liquor licensees are not furnished with sufficient guidelines by Section 2(c) of the ordinance to know what attire or lack thereof is prohibited. This is unreasonable.
The ordinance has a severability clause:
CERTIFIED QUESTIONS ANSWERED.
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
ALMON, J., not sitting.
[1] W. Shakespeare, Macbeth, Act I, sc. V, 1. 41. Lady Macbeth: "... Come, you spirits that tend on mortal thoughts! unsex me here...." | September 18, 1987 |
53cdeb36-aa8f-44f4-a573-8e06fd0442f6 | Clark v. Cypress Shores Development Co. | 516 So. 2d 622 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 622 (1987)
Norman H. CLARK
v.
CYPRESS SHORES DEVELOPMENT COMPANY, INC.
CYPRESS SHORES DEVELOPMENT COMPANY, INC.
v.
Norman H. CLARK.
85-1343, 85-1372.
Supreme Court of Alabama.
October 23, 1987.
James H. Lackey, and Calvin Clay of Clay, Massey & Gale, Mobile, for appellant/cross-appellee.
William M. Lyon, Jr. of McFadden, Riley & Lyon, Mobile, for appellee/cross-appellant.
BEATTY, Justice.
These appeals are from an order (1) granting summary judgment in favor of *623 Norman H. Clark on his claim for breach of warranty of title; (2) granting summary judgment in favor of Cypress Shores Development Company, Inc. ("Cypress Shores") on Clark's claim for breach of contract; and (3) granting the alternative motion of Cypress Shores for summary judgment as to the issue of damages.
The pertinent facts were stipulated to by the parties and set out comprehensively by the trial court in its findings of fact, which we adopt herewith:
"Charles Shaw, a real estate agent acting for Norman Clark, contacted Cypress Shores Development about purchasing Lots 46 and 47 of Unit Four, Cypress Shores Subdivision in February 1980.
"An offer was made to purchase the same for $21,000, and was not accepted by Cypress Shores.
"The offer contained language requiring that the covenants be removed.
"A later offer was made for $22,500 and on June 20, 1980, Cypress Shores accepted the same. The condition of the purchase agreement was `the owners having restrictive covenants removed so that the property may be used for commercial purposes and such document for removal to be recorded in the Office of Probate of Mobile County. Owners to have thirty (30) days from date of acceptance of this offer to fulfill this obligation.'
"...
"The purchase contract was prepared by Clark's real estate agent, Charles Shaw.
"Unit IV had been subdivided in early 1963 by Cypress Shores and the restrictive covenants appertaining thereto had been recorded on March 21, 1963. Pursuant thereto, Defendant Cypress Shores as the developer, by and through the Architectural Committee retained the right and power to amend or cancel all or any part of the restrictions at any time by an instrument executed by the said committee.
"Pursuant to said authority, on November 1, 1980, the Architectural Control Committee of Cypress Shores executed a document purporting to remove the restrictive covenants pertaining to Lots 46 and 47, so as to comply with the requirements of the purchase contract.
"The modification executed by the Architectural Control Committee of Cypress Shores was recorded on November 18, 1980, in real property book 2177, page 604 of the Probate Court Records of Mobile County, Alabama, and is hereinafter quoted in its entirety.
"`Pursuant to the provisions of the instrument captioned "Covenants, Restrictions and Limitations" dated March 21, 1963, and recorded in real property book 406, pages 255-259 of the records in the Office of the Judge of Probate of Mobile County, Alabama, the Architectural Control Committee to which references [are] made in paragraph 3 of said instrument, acting by and through the undersigned Kenneth R. Giddens, Arthur Tonsmeire, Jr., and William Lyon, who comprised a majority of the members of such Committee, does hereby annul, cancel and modify the said instrument and all of the covenants, restrictions and limitations and requirements therein set forth insofar as they relate to lots 46 and 47 of Unit IV of the subdivision, plat of which is recorded in Map Book 14, Page 82 of said records, and the said instrument is hereby modified so as to effect such cancellation and annulment.'"
"On November 21, 1980, the closing of the sale of the said lots to Clark occurred. No representative of Cypress Shores was present.
"The Plaintiff received the document removing the restrictions from his real estate agent Shaw prior to the closing. The Plaintiff received the warranty deed dated November 13, 1980, at closing.
"The contents of the document and the purchase agreement contained the representations relied on by Clark concerning the removal of the restrictive covenants. No oral representations were made to Clark concerning the effect of the removal document. Clark and his employee, Vincent Dyal, testified that no discussions concerning the sale were had with any agent, servant or employee of Cypress Shores.
*624 "The deed states in pertinent part:
"`The property is conveyed subject to all existing utility and drainage easements and rights-of-way and zoning restrictions, as well as to the lien for current ad valorem taxes, which grantee assumes and agrees to pay when due, and to the following, specifically:
"`To the exception and reservation hereinabove mentioned; to building set back line, drainage and utility easement, and all other matters shown on said plat; to easement granted Alabama Power Company by instrument recorded in real property book 538, page 834; to all other existing easements and rights of way, if any; to restrictive covenants as contained in instrument recorded in real property book 406, page 255, as modified by instrument recorded in real property book 2177, page 604, and to all matters of public record or visible on the ground, or that are shown or would be shown on an accurate survey of the property.
"`...
"`Grantor covenants to and with the grantee that, except as to matters, exceptions and reservations above referred to, it is lawfully seized of said property, the same is free from other encumbrances, and it and its successors will forever warrant and defend the title to said property, as herein conveyed, unto the said grantee, and unto the heirs, successors and assigns of grantee, against the lawful claims of all persons, whomsoever.
"`All recordations mentioned herein refer to the records in the office of the Judge of Probate Court of the County in which the above property is located, [Mobile County] unless otherwise indicated.'"
"By late November 1980, Clark had commenced construction on the lots.
"Thomas Deas, attorney for the residents of Cypress Shores, contacted Charles Street or Calvin Clay, attorneys for Clark, in mid-November 1980 expressing concern over the apparent commencement of construction of the convenience store on residential lots in the subdivision, and inquiring as to whether any authority or permission existed therefor.
"On November 19, 1980, Calvin Clay, attorney for Clark, wrote to Mr. Deas in response to his inquiry and enclosed a copy of the covenants and removal document and advised that authority existed to construct the store on the lots in question.
"On November 24, 1980, Deas wrote a letter jointly to Calvin Clay and to Vivian G. Johnston, Jr., a stockholder of Cypress Shores Development, enclosing a copy of the complaint for injunction and requesting that Clark cease further building activity on the lots.
"The actual complaint was filed on November 25, 1980, the next day.
"Clark was served December 5, 1980.
"At the date of the hearing on the injunction before Judge Hogan, on December 18, 1980, improvements limited only to the sitework had been done.
"The sum of $13,671 was spent on sitework for the building, although when the expenditures occurred is a matter of dispute.
"On November 28, 1980, Clark paid $2,317.00 of the sitework cost to G.B. Moore for fill dirt and haul off of excavated dirt. On the invoice no date for the work [was specified, although the Plaintiff's contractor, Terry Whitney, testified that the work was] done a day or so prior thereto. On December 5, 1980, Clark paid Moore $6,076.00 for fill dirt and haul off of excavated dirt. The invoice stated that the date for the work was ... November 28 to December 4, 1980. On December 10, 1980, Clark paid Moore a statement of $3,577.00 for work done from December 4 to December 10, those invoices total $11,970.00.
"Other sitework was added later. On March 27, 1981, fill and was provided by [sic] Frank Jordan Construction Co., for which Clark paid $1,592.00.
"Prior to the hearing on December 18, 1980, concerning sitework, in addition to payments to Moore, Clark had paid his *625 contractor Terry Whitney on December 5, 1980, for sitework labor incurred the preceding four days. At the date of the hearing, Clark had paid Moore $11,970.00.
"Judge Hogan denied the request for injunction on December 24, 1980. On that date, the Plaintiff residents filed Motion for Grant of Injunction pending the appeal which Judge Hogan granted on January 5, 1981, and required them to post a $50,000 bond which they failed to do. The appeal to the Supreme Court of Alabama was filed by the residents on February 3, 1981. The case was one of first impression with the Court, there being no previous decision specifically invalidating the use of such power for that purpose.
"Completion of construction of the store was then commenced by Clark.
"The slab was poured on February 19, 1981, and the footing was poured several days earlier. The concrete blockwork was done prior to February 20, 1981.
"The cost of the building and improvements excluding the sitework was $55,241.07.
"The building was completed and opened March 26, 1981.
"The store was operated continuously thereafter until closed.
"Clark placed a mortgage on the property on March 31, 1981, with American National Bank in the amount of $104,000.00....
"Clark leased by oral agreement the building to his corporation, Complete Package Food Stores, Inc., of which he owned 100% of the stock, for $3,200.00 per month.
"On April 30, 1982, the Supreme Court of Alabama in the case styled Wright v. Cypress Shores Development Co., Inc., 413 So. 2d 1115 (1982), reversed the decision of the trial court and remanded a case for further proceedings not inconsistent with its opinion.
"On January 19, 1983, Judge Robert Hodnette, Jr., ordered among other things that operation of the store cease. The store was closed on or about April 28, 1983. On that day, Clark filed the subject complaint against Cypress Shores Development Co., Inc. Other Defendants and causes of action having been dismissed, the only remaining Defendant in this case is Cypress Shores Development Co., Inc., and the only remaining causes of action against the Defendant are breach of contract based on the purchase agreement and deed given by the Defendant to the Plaintiff.
"Pursuant to the directive contained in the decision of the Supreme Court of Alabama in Wright v. Cypress Shores Development Co., Inc., 413 So. 2d 1115 (1982), the building and the canopy and the gas pumps were removed shortly after September 21, 1984.
"Norman Clark expended the following sums of money subsequent to purchasing the property in question:
"1. Fill and foundation preparation work: $13,671.00
"2. Cost of building (material and labor): $55,241.00
"The corporation entered into a sixty month lease with Avco Financial Services, requiring monthly payments of $739.16 which lease covered the following equipment installed on the premises:
"(a) The two gas pumps with console.
"(b) Island.
"(c) Guard posts.
"(d) Canopy and lights.
"(e) Four refrigerators (coolers).
"(f) All shelving.
"The total cost of the lease was $44,389.00 less the $19,218.00 for the 26 months that the store was open and the leased equipment used.
"Additionally, the corporation installed two gasoline tanks which it had in prior inventory, worth approximately $2,700.00 each.
"The gasoline tanks remain in place, as does the asphalt parking lot.
"After destruction of the building, the corporation has retained possession of the gasoline pumps, the canopy, the shelving, and four refrigerator coolers, although *626 their present value is unknown. There was no remaining salvage value to the store.
"The present fair market value of the two lots as residential lots is $5,000.00 each. The Defendant in this case has never requested rescission of the purchase contract."
(Emphasis in original.) (The bracketed material is found in the court's original order and was apparently inadvertently omitted in the amended order.)
In granting Clark's motion for summary judgment on this claim for breach of warranty of title, the trial court limited the damages recoverable by Clark to $12,500 the difference between the purchase price of the two lots ($22,500) and their present fair market value, stipulated to by the parties as $5,000 per lot. The only issue presently raised by Clark is the correctness of the trial court's ruling on the measure of damages. By its cross-appeal, Cypress Shores argues that the trial court erred in finding that the existence of the restrictive covenants violates the covenant against encumbrances contained in the deed. Having reviewed and analyzed the conclusions of law reached by the trial court on these two issues, including the authorities relied upon, we find that Judge Robert L. Byrd, Jr., has correctly decided these issues in his thorough and well-reasoned order. We hereby adopt the pertinent portions of that order as our opinion:
"The general rule concerning a contract made to convey the property is that once a deed has been executed and delivered, the contract becomes merged into the deed, because it has accomplished the purpose for which it was created. Holmes v. Birmingham Transit Company, 270 Ala. 215, 116 So. 2d 912 (1959). The terms in the deed which follows the contract of sale become the sole memorial of the agreement which was once contained in the contract of sale. Asbury v. Cochran, 243 Ala. 281, 9 So. 2d 887 (1942). This does not mean that a contract no longer exists, just that the deed controls as the contract, rather than the terms of the prior sales contract. Plaintiff may only maintain his breach of contract action on the deed.
"The warranty deed given by the defendant, Cypress Shores Development Co., Inc. to the plaintiff, Norman H. Clark, after setting the basic terms of the conveyance and a description of the property to be conveyed, includes the following further agreements and warranties:
"`The property is conveyed subject to all existing utility and drainage easements and rights-of-way and zoning restrictions, as well as to the lien for current ad valorem taxes, which taxes grantee assumes and agrees to pay when due, and to the following, specifically:
"`To the exception and reservation hereinabove mentioned; to building set back line, drainage and utility easement, and all other matters shown on said plat; to easement granted Alabama Power Company by instrument recorded in Real Property Book 538, Page 834; to all other existing easements and rights of way, if any; to restrictive covenants as contained in instrument recorded in Real Property Book 406, Page 255, as modified by instrument recorded in Real Property Book 2177, Page 604; and to all matters of public record or visible on the ground, or that are shown or would be shown on an accurate survey of the property.
"`...
"`Grantor covenants to and with the grantee that, except as to matters, exceptions and reservations above referred to, it is lawfully seized of said property, the same is free from other encumbrances, and it and its successors will forever warrant and defend the title to said property, as herein conveyed, unto the said grantee, and unto the heirs, successors and assigns of grantee, against the lawful claims of all persons, whomsoever.
"`All recordations mentioned herein refer to the records in the office of the Judge of Probate Court of the County in which the above property is located [Mobile County], unless otherwise indicated.'"
"Although the original contract of sale between the parties was merged into the *627 deed when it was executed and delivered, the deed itself includes a reference to the agreement to modify the restrictions in the paragraphs quoted above. The modification referred to in the deed is incorporated by reference and becomes a part of the deed as if restated in its entirety. Mayo v. Andress, 373 So. 2d 620, 264 (Ala.1979); Turk v. Turk, 206 Ala. 312, 89 So. 457 (1921).
"By mentioning the modification to the restriction by book and page number, the grantor incorporated by reference all terms stated in the modification of the restriction which had been filed by the Architectural Control Committee on November 1, 1980. Thus, the deed executed on November 13, 1980, specifically subjects the restrictions it mentions to the modification it incorporates, and thereby nullifies them.
"The warranty and covenant that the restrictive covenants previously made against the use of the lots being transferred had been modified to exclude those specific lots from the application of the restrictive covenants, was done specifically in the habendum clause of the deed. The specific reference to the modification stated that the property was made subject to the restrictive covenants `as modified by the instrument recorded in Real Property Book 2177, Page 604'; and, in a later paragraph, defendant, as grantor, covenanted that there was no other encumbrance or restriction other than the ones which had previously been specified in the deed. What the deed expressly states, in referring to the restrictive covenants and the modification, is a double negative or an exclusion negating a former exclusion. Although this is a somewhat convoluted approach, the effect is that of negating the prior restrictions which the deeded property had been subjected to in the past. Therefore, the Court finds that defendant's argument in its Summary Judgment motion that the deed contains no warranty or covenant against encumbrance is without any support from the facts. The deed clearly covenants and warrants that the restrictions have been modified and it does not include the exculpatory phrase `if at all' after referring to the modification. Thus, defendant's argument that no warranty or covenant was made must fail. Grantor is precluded, by the statements made in the deed, from denying that it asserted in the deed that the restrictions were modified, based on the theory of estoppel by deed. Garrow v. Toxey, 188 Ala. 572, 66 So. 443 (1914); Denny v. Wilson County, 198 Tenn. 677, 281 S.W.2d 671, 675 (1955); Cleveland Boat Service v. City of Cleveland, 102 Ohio App. 255, 130 N.E.2d 421, 425 (1955). The defendant is also estopped, by the deed it has signed, from stating that the agreement stated in the deed was only to file the document for modification, when the clear intent of the language in the deed is that the modification of the restrictions had been accomplished and consideration given therefor. Id. Defendant fails to state any defense to plaintiff's action on this theory.
"This Court finds that the argument asserted by defendant, that the purchase agreement constitutes an illegal contract which cannot be enforced, is totally unsupported by the facts of this case and the law cited by the defendant. First, the Supreme Court in Wright v. Cypress Shores Development Co., Inc., 413 So. 2d 1115 (Ala. 1982), merely declared a modification referred to in the deed as `void'not illegal. The act of modifying a restrictive covenant in a deed is not illegal. The cases defendant cites in support of this argument concern situations where a contract was made for the accomplishment of certain acts which were already statutorily illegal, criminal or immoral at the time the contract was made. The rule of law stated by the defendant applies to the unenforceability of contracts which would require the performance of an illegal, criminal or immoral act, such as: gambling, prostitution, adultery, etc. Potter & Son v. Gracie, 58 Ala. 303 (1877); see also 17 Am.Jur.2d Contracts §§ 181-82. The specific case cited by defendant, Derico v. Duncan, 410 So. 2d 27 (Ala.1982), involved a party's violation of a statutory consumer protection law, which was akin to a misdemeanor. In that case, the Court held that the contract made in violation of said statute was illegal, and thus, unenforceable. As no statute *628 was violated by the filing of a modification of restrictive covenants, the contract between the plaintiff and defendant was not illegal, and thus, defendant has no defense based on this theory.
"...
"This Court finds that the Plaintiff has established a breach of the term stated in the deed which asserts that the restrictions on the deeded property have been nullified. The deed sets out clearly that the lots transferred are only subject to the restrictions listed, which it then qualifies as being modified so as not to apply at all. The book [number] and page number of the modification [are] listed, effectively incorporating the terms of the modification. The modification clearly states that all restrictions previously placed on the lots were to be nullified by the modifying document.
"This Court concludes that the second cause of action as filed by the plaintiff presents a claim for breach of warranty of title in the deed, although the plaintiff argues that it only sets forth a claim for breach of contract. As this Court holds that the purchase contract was merged into the deed, as such, this Court finds that only a breach of warranty of title against encumbrances occurred. The general rule where failure of title does not occur is that the measure of damages for breach of a covenant against such encumbrance is the depreciation in the value of the land from this cause. See: 20 Am.Jur.2d Covenants, Conditions, etc. § 145.
"`If an encumbrance or defect amounts to less than total failure of title, the measure of damages for breach of a covenant of title is the diminished value of the title conveyed, on account of such encumbrance or defect.' (Citing Alger-Sullivan Lumber Co. v. Union Trust Co., 218 Ala. 448, 118 So. 760 (1928).
"`That is, the grantee is entitled to recover the difference between the value of the whole tract, if the title were good, and its value as depreciated by the encumbrance, not, however, to exceed the purchase price of the whole tract, with interest thereon.' (Citing Clark v. Ziegler [Zeigler], 79 Ala. 356 (1888)).
"`This is an application of the rule of damages that if one is bound to warrant, he warrants the entirety; but he shall render value only for that which was lost.'" Id. § 144.
See also: Copeland v. McAdory, 100 Ala. 553, 13 So. 545 (1893); Crickenberger v. Clay, [215 Ala. 67], 109 So. 363 (1926); Alger-Sullivan Lumber Co. v. Union Trust Co., 218 Ala. 448, 118 So. 760 (1928); 21 C.J.S. Covenants § 145; 20 Am.Jur.2d Covenants, Conditions, etc. § 134 at 693; § 139 at 696; § 145 at 703 (1965).
"The measure of damages for breach of warranty against encumbrances cannot exceed the purchase price. Even in a case of complete failure of title, the maximum recovery is limited to the purchase price.
"`The loss is to be based upon the purchase price of the land, and the fact that the land was actually worth much more or less than the purchase price cannot be taken into consideration.'" Id. at § 144.
"St. Paul Title Insurance Corporation v. Owen, 452 So. 2d 482 (Ala.1984). Colson v. Harden, [224 Ala. 665], 141 So. 639 (1932).
"It has been stipulated that the present fair market value of the lots is $5,000 each. Therefore, the depreciation in value of the land is $12,500.00.
"Thus, the maximum recovery to which the plaintiff would have been entitled if title had failed entirely would be $22,500.00. But since a complete failure of title is not had in this case, plaintiff can only recover the depreciation of $12,500.00 due to the encumbrance.
"See also: 20 Am.Jur.2d Covenants, Conditions, etc. § 145 at 703.
"The value of improvements made by the grantee after the purchase is not an element of damage nor are consequential damages recoverable. The general rule is that where `damages are assessed as of the time when the contract was entered into, the ordinary measure of damages, that is the purchase price and interest,applies... notwithstanding any increase in the value of the land attributable to the improvements *629 upon the land by the grantee.' 21 C.J.S. Covenants § 145.
"Therefore, Alabama follows the general rule which limits maximum recovery for breach of covenants to the amount of the purchase price, and does not permit recovery by the grantee of the value of improvements or consequential damages. Copeland v. McAdory, supra, and Dallas Compress Company v. Liepold, 205 Ala. 562, 88 So. 681 (1921). In Davis v. Smith, 5 Ga. 274, 48 Am.Dec. 279 (1848), the Court said:
"`He (the vendor) cannot be presumed to contract in reference to any future condition of the estate which he sells, either to his loss by its natural appreciation, or its actual improvement, or to his gain by its depreciation. He does not submit himself and his heirs to the contingencies which run through many years, much less can he be understood as contracting for a liability to pay for improvements, which rest altogether within the discretion, or caprice, or folly of the purchaser.'" (Emphasis supplied.)
"In Kenny [Kinney] v. Watts, 14 Wend. N.Y. 38 (1935), the Court said:
"`The vendee when he purchases, may insist upon special covenants, which will secure to him a perfect indemnity for any expenditures or improvements on the premises, in case of eviction; but, if he takes the general covenants of warranty and quiet enjoyment, he has no right to complain if the law does not afford him full compensation for the loss and injury which he has sustained by eviction. If he resorts to an action upon this covenant, he must take the rule of damages which the law has established for a breach of it.
"`... The measure of damages recoverable for breach of warranty of title is not affected by the proportion between the value of the mesne profits received by the evicted grantee in his outlay for improvements and taxes, the latter being less than the value of the mesne profits received.'" 61 A.L.R. 1, at [184-187], supra.
"The rule against recovery of the value of improvements especially applies to the plaintiff in this case since the improvements were erected by him at his own risk and subject to the possible (and actual) adverse result on appeal. The Alabama Supreme Court, in the second decision of Wright, supra, stated:
"`We also agree with [the] argument that Clark acted at his own peril in building the store because he knew that the first appeal was pending in this Court.'" 461 So. 2d 1296 at 1299 (1984).
"Therefore, this Court will not grant the plaintiff additional damages due to the value of the improvements lost which directly occurred as a result of the plaintiff's failure to mitigate his damages and erecting the improvements in conscious disregard of the consequences of the action of the subdivision property owners.
"The doctrine of caveat emptor applies to the sale of unimproved real estate. Where no fraud occurs, as here, the protection of title afforded a purchaser arises from the covenants contained in the deed. Plaintiff's only remedy in this case, since rescission has not been claimed, would be under any covenants of title in the deed. There are no special covenants in the instant deed which would provide a basis for recovery for the plaintiff's improvements. This Court has previously set forth the measure of damages for breach of the general covenants of title.
"As stated in Asbury v. Cochran, supra, the general rule is:
"`[T]hat in the absence of stipulations to the contrary, every contract for the sale of real estate implies that a good title will be made.'" (Citations omitted.)
"`This applies to an executory contract for the purchase and sale of real estate and is given by law, and exists until the contract has been performed by the execution of a deed. When that is done the purchaser must rely on the warranty in his deed; and if there is none, the rule of caveat emptor applies.'" [243 Ala. at 283, 9 So. 2d at 889.]
"See also: Cochran v. Keeton, 47 Ala.App. 194, 252 So. 2d 307 (1970) aff'd, 287 Ala. *630 439, 252 So. 2d 313 (1971); and Colonial Capital Corp. v. Smith, 367 So. 2d 490 (Ala.Civ.App.1979).
"ORDER
"It is therefore ORDERED, ADJUDGED and DECREED that the plaintiff Clark's Motion for Summary Judgment be and the same is hereby granted as to the claim for breach of warranty of title against encumbrances, and the defendant Cypress Shores's Motion for Summary Judgment is denied but the Court grants its motion for Summary Judgment in the alternative as to the issue of damages, and this Court finds that the measure of damages is the amount of $12,500, the difference between the purchase price of the subject lots and their present fair market value, together with interest at the legal rate."
Let the judgment be affirmed.
AFFIRMED.
MADDOX, ALMON, ADAMS and HOUSTON, JJ., concur. | October 23, 1987 |
16434a4a-845f-423b-a102-b56d2ffc8870 | Alabama Ins. Guar. Ass'n v. Stephenson | 514 So. 2d 1000 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1000 (1987)
ALABAMA INSURANCE GUARANTY ASSOCIATION
v.
Sandra K. STEPHENSON, et al.
86-387.
Supreme Court of Alabama.
September 25, 1987.
*1001 Michael S. Jackson of Melton & Espy, Montgomery, for appellant.
Robert M. Alton, Jr., Montgomery, for appellees Sandra K. Stephenson and Billy Stephenson.
Susan Shirock DePaola of Pappanastos & Samford, Montgomery, for appellee Blue Cross-Blue Shield of Alabama.
BEATTY, Justice.
This is an appeal by the Alabama Insurance Guaranty Association ("Association") from an adverse order in the Association's declaratory judgment action against Sandra K. Stephenson, Billy Stephenson, Morris Cummings, and Blue Cross-Blue Shield of Alabama. We affirm.
The facts are uncomplicated, yet they pose a legal question of first impression in this jurisdiction. Sandra Stephenson was involved in an automobile accident with an automobile operated by Morris Cummings. She sustained injuries and, together with her husband, filed an action for damages against Cummings.
Cummings had a policy of liability insurance with Standard Fire Insurance Company of Alabama ("Standard"), which is in receivership and thus under limited operation by the Association. The limits of Mr. Cummings's liability insurance policy under the Standard policy were $10,000 per claim and $20,000 per accident.
Sandra Stephenson was enrolled in a self-funded employee health benefit plan at her place of employment, and Blue Cross-Blue Shield of Alabama ("Blue Cross") served as third-party administrator of that plan. To date, Blue Cross has paid $5,387.80 in medical benefits on behalf of Stephenson and has asserted a subrogation claim in the underlying action for damages against Cummings for the amount so paid.
The issue below was whether, under the terms of the statutes creating the Association, its liability was reduced by the amounts so paid, i.e., whether the Assocation was entitled to deduct from its obligation under the statute any amount paid to Stephenson by Blue Cross.
Under Code of 1975, § 27-42-2:
And, under § 27-42-3, the Act's applicability is defined:
Covered claims are defined in § 27-42-5:
The Act also provides for non-duplication of recovery in § 27-42-12, which, in pertinent part, states:
We restrict our opinion solely to the issue raised. The basic question this Court is asked to decide is whether the Blue Cross payments to Stephenson fall within the exception of § 27-42-3 and are thus not subject to the non-duplication provisions of § 27-42-12. We hold that the plan of health insurance administered by Blue Cross is a kind of direct insurance excepted by the provisions of § 27-42-3, and thus benefits paid thereunder do not fall within the provisions of the Act, in particular the non-duplication section, § 27-42-12.
Not only does the clear language of the Act compel this result, but decisions of other jurisdictions also hold likewise.
In Harris v. Lee, 387 So. 2d 1145 (La. 1980), the Supreme Court of Louisiana held that the "non-duplication of recovery" clause of that state's statute[1] did not apply to payments by health and accident insurers because such insurance was specifically excluded from the Act. Thus, the Louisiana Insurance Guaranty Association was not entitled to a credit for medical payments made to plaintiff by his group health insurer, in an action for damages brought against a defendant whose liability carrier was insolvent and thus whose liability had been assumed by the Insurance Guaranty Association.
A similar approach was taken by the Superior Court of Pennsylvania in Bullock v. Pariser, 311 Pa.Super. 487, 457 A.2d 1287 (1983). There the plaintiff had received a payment from her own disability insurance carrier following an injury. When the tort-feasor's insurance company became insolvent, the Pennsylvania Insurance Guaranty Association undertook the defense of the action that had been filed by plaintiff and maintained that it was entitled to setoff the sum paid to plaintiff by her own disability carrier.[2]
In reconciling the Act's provisions, that court held that the Association was not entitled to deduct the amount of the payment by the disability insurer from the amount due her under the Act; and the court explained at 457 A.2d 1290:
"In Sands v. Pennsylvania Insurance Guaranty Association, 283 Pa. Superior Ct. 217, 423 A.2d 1224 (1980), this court addressed the question of when PIGA may be entitled to a setoff under § 503(a) of the Act. In that case, we noted that under the language of this section, an individual is not required to exhaust a claim unless it is `also a covered claim.' Referring to the definitional *1003 portion of the statute, we found that a `covered claim'
"`... means an unpaid claim, including a claim for unearned premiums, which arises under a property and casualty insurance policy of an insolvent insurer ...'
As we have shown, the insurance guaranty statutes do not apply to health insurance policies, and thus, under the definitions, the claim filed by Sandra Stephenson with Blue Cross is not a covered claim. Accordingly, the non-duplication provision of § 27-42-12 does not apply. Similarly, Sandra Stephenson's receipt of Blue Cross benefits places her in no better position than she would have been in had Standard remained solvent and thus as potentially responsible in damages as its insolvency makes the Association. Thus, no windfall situation is present.
Let the judgment be affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and HOUSTON, JJ., concur.
[1] Harris v. Lee, 387 So.2d at 1146:
"22:1386(1) states:
"`Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this Part shall be reduced by the amount of any recovery under such insurance policy.'
"However, that section of the Insurance Guaranty Association Law is limited by LSA-R.S.
22:1377 which provides:
"`This Part shall apply to all kinds of direct insurance, except life, health and accident, title, disability, mortgage guaranty, and ocean marine insurance.'"
[2] The statutory provision, § 503(a), is almost identical to its corresponding Alabama provision, § 27-42-12. Subsection (a) of § 27-42-12 states:
"Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first be required to exhaust his right under such a policy. Any amount payable on a covered claim under this act shall be reduced by the amount of any recovery under such insurance policy." | September 25, 1987 |
f7bb4cdd-3df9-4278-97bb-4695172f32dc | Cousins v. TG & Y. STORES CO. | 514 So. 2d 904 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 904 (1987)
Penton COUSINS
v.
T.G. & Y. STORES COMPANY and Patrick Cleveland, individually and as agent of T.G. & Y. Stores Company.
86-70.
Supreme Court of Alabama.
September 11, 1987.
*905 John E. Enslen, Wetumpka, for appellant.
Robert W. Bradford, Jr., and Charles A. Stewart III of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
TORBERT, Chief Justice.
This is an appeal by the plaintiff, Penton Cousins, from a summary judgment for the defendants, T.G. & Y. Stores Company and its employee, Patrick Cleveland, in the plaintiff's action for slander. We reverse.
This action arose out of an incident at a T.G. & Y. store. The plaintiff had gone to the store to purchase some foam rubber insulation to be used for weather stripping. The plaintiff's wife had previously purchased such insulation from the store, and the plaintiff took with him a remnant of this previous purchase to ensure that he bought the correct item. After an unsuccessful search for the insulation, which was apparently out of stock, the plaintiff left the store, carrying with him the remnant he had brought to the store.
Upon reaching his truck in the parking lot, a T.G. & Y. employeePatrick Cleveland, the codefendant in this actionaccosted the plaintiff and asked whether he had paid for the remnant. The plaintiff responded that he had not. Cleveland then instructed the plaintiff to return to the store, where he was led to the manager's counter. There, Cleveland stated, "This man took that package out of the store and didn't pay for it," or, "This man went out and didn't pay for this package," or words to that effect. The plaintiff alleges that this utterance was a slanderous accusation of theft, and he argues that the trial court erred when it granted a summary judgment in favor of the defendants.
The trial court, on the basis of the record before us on this appeal, granted summary judgment on one or both of two possible theories: 1) that the utterance was protected by a conditional privilege, and 2) that the plaintiff had failed to present evidence of damages in light of defendants' evidence. We will discuss the trial court's error on both of these matters in turn.
The plaintiff does not challenge the general proposition that a store employee has a conditional privilege to report a shoplifting *906 suspect to the appropriate third parties, and any doubt regarding this issue has been resolved by the recent case of Tidwell v. Winn-Dixie, Inc., 502 So. 2d 747 (Ala. 1987). In that case we approved the trial court's apparent finding that a conditional privilege attached to a store employee's report of a shoplifting suspect under the principles established for such a privilege in Fulton v. Advertiser Co., 388 So. 2d 533 (Ala.1980), cert. denied, 449 U.S. 1125, 101 S. Ct. 942, 67 L. Ed. 2d 111 and 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 119 (1981). Consequently, we have no doubt that the utterances by codefendant Cleveland met at least the threshold requirements for the protection of a qualified or conditional privilege.
A finding that a qualified or conditional privilege applies, however, does not end the inquiry:
Wilson v. Birmingham Post Co., 482 So. 2d 1209 (Ala.1986).[1]
We find that the evidence of "the mode and extent of the publication" in this case included a scintilla of evidence that malice accompanied the communication. In particular, we note that the evidence could support the inference that Cleveland made the statement in a voice louder than necessary to communicate the suspected theft to the store management or to the appropriate public authorities. Evidence suggests that an estimated 40 or 50 Christmas shoppers overheard the communication that plaintiff contends is an accusation of theft. Aside from the fact that the volume of the communication itself might be evidence of malice, see Lewis v. Ritch, 417 So. 2d 210, 212 (Ala.Civ.App.1982), evidence of the overly extensive nature of the communication itself presents a scintilla of evidence that malice accompanied the utterance. In light of this evidence and the fact that the determination of malice in defamation cases is particularly within the province of the jury, see Loveless v. Graddick, 295 Ala. 142, 325 So. 2d 137 (1975), we hold that summary judgment on this issue was improper.[2]
We reach a similar conclusion with regard to the issue of damages. In Beneficial Management Corp. of America v. Evans, 421 So. 2d 92 (Ala.1982), we held that proof of actual injury was required in most defamation cases, rejecting the common law notion of defamation per se, that is, the idea that some forms of defamation require no proof of injury because injury is presumed to flow from the publication of the defamatory statement. We reached this conclusion because we interpreted Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), to require such evidence as a matter of constitutional law. Accordingly, "`[i]t is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth [i.e., "malice" as defined by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)] to compensation for actual injury.'" Beneficial Management Corp. of America v. Evans, *907 421 So. 2d at 96 (quoting Gertz v. Robert Welch, Inc., supra).[3]
Even if we assume that there was no Sullivan malice shown in this case, a question we do not decide, there is a scintilla of evidence of compensable injury in the record before us, so that summary judgment is precluded. The record reveals that the plaintiff testified that he had been exposed to public ridicule, as manifested by jokes and other comments from acquaintances, that he had suffered mental anguish, and that he had visited his doctor because of physical problems resulting from the alleged slander. We think that this evidence presents at least a scintilla of evidence of "actual injury" as it is recognized by the controlling cases. "`Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.'" Beneficial Management Corp. of America v. Evans, 421 So. 2d at 96 (quoting Gertz v. Robert Welch, Inc., supra). Accordingly, the grant of a summary judgment on this issue was also improper.
Finally, we note that the defendants have interposed on this appeal the argument that the statement Cleveland made was true and thus not defamatory. The defendants argue in their brief that, while this issue does not appear on the face of the record, the issue was considered by the trial court on the motion for summary judgment. We are not persuaded to consider this argument. "On appeal from the granting of a summary judgment, this court is limited to a review of the record alone, and the record cannot be modified or altered by statements in briefs of counsel, nor by affidavits or other evidence not properly submitted." Barnes v. Liberty Mutual Insurance Co., 472 So. 2d 1041, 1042 (Ala.1985).
The summary judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
JONES, SHORES, ADAMS, and HOUSTON, JJ., concur.
[1] The "actual or common law" malice that must be shown by private-figure plaintiffs to overcome a qualified or conditional privilege is to be distinguished from the "actual malice" required in cases of the defamation of public figures and set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). See Fulton v. Advertiser Co., 388 So. 2d 533 (Ala. 1980).
[2] Our decision in White v. Mobile Press Register, Inc., 514 So. 2d 902 (Ala.1987), is not in conflict with this holding because White involves actual malice as opposed to common law malice.
[3] The United States Supreme Court has recently clarified the law in regard to presumed and punitive damages in defamation cases involving private figure plaintiffs and matters not of public concern. In Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985), the Court held that the state's interest in protecting the reputation of private figures in such circumstances outweighed First Amendment free speech values, so that "the state interest adequately supports awards of presumed and punitive damages even absent a showing of `actual malice.'" Id. at 761, 105 S. Ct. at 2946. In short, the constitutional constraints that we had previously found in the First Amendment as a result of Gertz do not in fact exist in cases of defamation of private figure plaintiffs on matters not of public concern. Consequently, the question arises as to whether the common law rule of defamation per se (requiring no proof of injury) ought to be revitalized in those cases within the fact patterns contemplated by Dun & Bradstreet.
None of the parties raises this precise issue in this case, however, nor is its resolution necessary for a disposition of this case. Accordingly, we leave the question of the status of common law presumed damages for later decision. | September 11, 1987 |
e301106a-f09a-40cb-b24c-842f8e5dd618 | Boswell v. Coker | 519 So. 2d 493 | N/A | Alabama | Alabama Supreme Court | 519 So. 2d 493 (1987)
Inez BOSWELL
v.
James H. COKER, d/b/a Jim Coker Property Sales.
86-724.
Supreme Court of Alabama.
December 31, 1987.
*494 Kearney Dee Hutsler III of Baxley, Dillard & Dauphin, Birmingham, for appellant.
Herbert W. Stone, Birmingham, for appellee James H. Coker, etc.
Douglas Corretti of Corretti & Newsom, Birmingham, for appellee Jefferson Fed. Savings and Loan Ass'n of Birmingham.
TORBERT, Chief Justice.
Inez Boswell, appellant, filed suit against James H. Coker, individually and doing business as Jim Coker Property Sales. Jefferson Federal Savings and Loan Association of Birmingham, Jim White, White Roofing and Supply Company, and Bob Andrews were also named as defendants.
The plaintiff claimed fraud against Jim Coker, Jefferson Federal, and White Roofing. She made negligence and breach of contract claims against the other defendants.
Plaintiff appeals from a summary judgment, made final pursuant to A.R.Civ.P. 54(b), in favor of defendant James H. Coker. We reverse.
On June 5, 1984, Boswell executed a contract for the purchase of a 25-year-old house from Jefferson Federal. The sales contract provided that the property was being sold in its "as is" condition, subject to outstanding rights of redemption, and it also provided that no representations or warranties of any kind or character, express or implied, were being made as to the condition of the material and workmanship in the dwelling house located on the property. The sales contract further provided that the purchaser had inspected and examined the property and was purchasing it based on no representations or warrantiesexpressed or impliedbut on her own judgment. Plaintiff Boswell had ample opportunity to inspect the premises prior to the closing.
Boswell made no complaint about the premises prior to entering the sales contract. Afterwards, she made repeated complaints to Coker, the real estate agent who sold the house to Boswell. Coker contacted a Mr. Andrews of Jefferson Federal about inspecting the roof. Andrews then asked Coker to call White Roofing and Supply Company and ask it to have someone inspect the roof. David White, of White Roofing, did inspect the roof. David White told Coker that, comparing the cost of repairing the roof to what it would cost to reroof the house, it would be better to reroof the house entirely. Coker related this information to Andrews. Andrews told Coker that Jefferson Federal did not want to put a new roof on the house, but asked Coker to see if temporary repairs could be made to the roof. Coker never mentioned to Boswell the fact that White Roofing had told him that, considering the cost of repairs, it would be better to put a new roof on the house. James White of White Roofing subsequently made some minor repairs to the roof. A letter regarding the roof was written by White Roofing to Jefferson Federal. This letter certified that the roof was reasonably sound and should be servicable for one year. Coker read this certification to Boswell over the telephone. Also, Boswell claims in an affidavit, Coker told her that the house was in *495 excellent condition and that there was nothing wrong with the roof.
At the closing, the purchaser reaffirmed the "no representations or warranties" provisions of her original sales contract, by executing an additional document to that effect. The purchaser proceeded with the closing, after receiving and considering a copy of the certification letter from White Roofing. After the closing, Boswell discovered that the roof leaked. Mike White of White Roofing then inspected the roof and advised that a new roof was needed.
Summary judgment should be rendered only if the pleadings, depositions, answers to interrogatories, or affidavits submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.; Sadie v. Martin, 468 So. 2d 162 (Ala.1985). If there is any evidence supporting the position of the party against whom the motion is made, summary judgment cannot be granted. Ray v. Montgomery, 399 So. 2d 230 (Ala.1980).
To recover under either the willful, reckless, or innocent species of fraud, the plaintiff must establish: 1) a false representation 2) that concerned a material, existing fact and 3) that the plaintiff relied on that false representation and 4) was damaged as a proximate result. Jones v. McGuffin, 454 So. 2d 509 (Ala.1984). Also, to recover for misrepresentation, a plaintiff's reliance must be reasonable under the circumstances. Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983). If the circumstances are such that a reasonably prudent person exercising ordinary care would have discovered the facts, the plaintiff should not recover for misrepresentation. Id.
Ordinarily, a real estate agent selling a used home is under no duty to speak; however, "where one responds to an inquiry, it is his duty to impart correct information, and he is guilty of fraud if he denies all knowledge of a fact which he knows to exist, or if he gives equivocal, evasive, or misleading answers calculated to convey a false impression, even though literally true as far as they go, or if he fails to disclose the whole truth." Jackson Co. v. Faulkner, 55 Ala.App. 354, 363-64, 315 So. 2d 591 (1975), quoting American Bonding Co. of Baltimore v. Fourth Nat. Bank, 206 Ala. 639, 641, 91 So. 480, 482 (1921); see Collier v. Brown, 285 Ala. 40, 228 So. 2d 800 (1969); Ray v. Montgomery, 399 So. 2d 230, 232 (Ala.1980).
The Jackson Co. case and the Torres case present two propositions. First, the Jackson Co. case holds that a person has a duty to disclose all relevant information if someone inquires about a relevant matter. 55 Ala.App. at 363-64, 315 So. 2d at 600. Second, the Torres case holds that because it is the policy of the courts not only to discourage fraud but also to discourage negligence and inattention to one's own interests, a plaintiff's reliance on a representation must be reasonable. 438 So. 2d at 758-59.
These two propositions, taken together, indicate that although there is a duty to reveal the truth about a matter once there is an inquiry, a person's reliance on the representation made must be reasonable. Once an inquiry is made, if a real estate agent, by not responding or by only partially responding, misrepresents a material fact about a piece of property he or she is trying to sell, then that agent will be liable for fraud if the buyer's reliance on the representation is reasonable. See Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983).
In the present case, defendant Coker did not reveal that White Roofing had initially stated that it would be better to put a new roof on the house, even though Boswell had inquired of him regarding the condition of the roof. Coker, instead, responded only by reading to her the certification letter obtained from White Roofing. A question arises as to whether the failure of Coker to inform Boswell about David White's statements was a breach of a duty to disclose. Code 1975, § 6-5-102. Also, a *496 factual determination as to whether Boswell reasonably relied on the information given by Coker is necessary in order to determine whether Coker is guilty of fraud. This determination must be made in light of the fact that Boswell was given an opportunity to inspect the house.
Another issue in the present case is whether the statements made by Coker constituted an expression of opinion or a representation of fact. The ultimate determination of the true nature of a given statement depends upon all the circumstances of the particular case. Jones v. McGuffin, 454 So. 2d 509, 512 (Ala.1984); Fidelity & Casualty Co. v. J.D. Pittman Tractor Co., 244 Ala. 354, 13 So. 2d 669 (1943). Boswell claims, in her affidavit, that Coker told her, prior to the signing of the sales contract, that there was nothing wrong with the roof. She also claims that this statement was made in response to specific questions concerning the roof. In a situation where a real estate agent responds directly to an inquiry by the buyer, the determination of whether the response is a representation of fact or merely an expression of opinion is ordinarily a matter for the jury. Fidelity & Casualty Co., supra. See Harrell v. Dodson, 398 So. 2d 272, 276 (Ala.1981).
There are several issues of genuine fact the jury must consider: 1) whether defendant Coker's statements were representations of fact or expressions of opinion; 2) whether defendant Coker's failure to respond completely (i.e., his failure to tell all that he knew about the roof) was a breach of duty; and 3) whether plaintiff Boswell's reliance on defendant Coker's statements was reasonable. Clearly, this was not a case for summary judgment. Rule 56, A.R.Civ.P.
REVERSED AND REMANDED.
MADDOX, ALMON, BEATTY and HOUSTON, JJ., concur. | December 31, 1987 |
94935685-3c27-4d15-bb26-c646950fd8bd | Ex Parte Ogle | 516 So. 2d 243 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 243 (1987)
Ex Parte Gail OGLE.
(Re Gail OGLE v. STATE).
86-737.
Supreme Court of Alabama.
September 25, 1987.
Trey Riley, Huntsville, for petitioner.
William Prendergast and Coleman Campbell, Asst. Attys. Gen., for respondent.
SHORES, Justice.
The appeal to the Court of Civil Appeals was from an order terminating the parental rights of Gail Ogle as to her seven-year-old daughter, Krystal. The Court of Civil Appeals affirmed, 516 So. 2d 242. We granted certiorari.
The Court of Civil Appeals, in Hickman v. Alabama Department of Pensions & Security, 489 So. 2d 601, 602 (Ala.Civ.App. 1986), summarized the applicable rules and guidelines for courts in parental-rights-termination cases as follows:
The only issue is whether there was clear and convincing evidence before the trial court to support its order terminating Ms. Ogle's parental rights.
Section 12-15-1(10), Code of Alabama (1975), defines "dependent child," in pertinent part, as follows:
*244 "f. [A child] [w]ho is in such condition or surroundings or is under such improper or insufficient guardianship or control as to endanger his morals, health or general welfare; or
No serious dispute exists over the classification of Krystal as a dependent child. Krystal was in foster care from January 7, 1980, to June 12, 1981, upon Ms. Ogle's request. From June 1981 until April 1984, Krystal lived with her mother. However, on April 18, 1984, Krystal was returned to foster care pursuant to a pick-up authorization from a juvenile judge. Krystal has been living with a foster family since that time.
Gail Ogle is a diagnosed chronic schizophrenic. She has voluntarily been receiving treatment since June 1985 and is presently residing at the Cahaba Regional Transitional Home, a halfway house in Selma, Alabama, providing its tenants with access to social workers and assistance in job placement. A counselor at the home stated that Ms. Ogle is progressing "fairly well"; however, it is clear from the other evidence presented that Ms. Ogle has not yet reached the stage where she can care for her seven-year-old child. Accordingly, we are in complete agreement with the trial court's determination of the dependency of Krystal Ogle.
Before parental rights may be terminated, all viable alternatives to termination of those rights must be examined to ensure that there is no less drastic measure available. Brand v. Alabama Department of Pensions & Security, 479 So. 2d 66 (Ala.Civ.App.1985); Matter of Colbert, 474 So. 2d 1143 (Ala.Civ.App.1985). Ms. Ogle asked the court to consider placing the child with her sister and brother-in-law, Uveda and Ed Grant. The Montgomery County Department of Pensions and Security investigated the Grants' home; however, it would not recommend placement there. The home evaluation report provided as follows:
"HOUSEHOLD COMPOSITION:
Uverda [sic] Grantwife11-30-62
Edward Earl Grant [Sr.]husband2-7-56
Edward Earl Grant [Jr.]son8-29-83
"PHYSICAL DESCRIPTION OF HOME:
"Mr. and Mrs. Grant and Edward Earl reside in a subdivision within the lower middle class range. The house is located on a large corner lot. The front porch area was cluttered. The house consists of three bedrooms, a kitchen, pantry room, dining room, living room and bath. One of the bedrooms has been converted into a den area. The house is furnished adequately with sturdy contemporary furniture. The house was attractively decorated with [bric-a-brac,] pictures, table cloth, etc. According to Mrs. Grant, the den area would be converted into a bedroom for Krystal. A bedroom suite would have to be purchased for Krystal as the family does not have an extra one.
"BACKGROUND INFORMATION:
"Mrs. Grant was born and reared in Montgomery. Her mother is Ms. Betty Sanders and her father is deceased, Aubry Eugene Ogle. Ms. Betty Sanders is presently an open Protective Service case. Mrs. Grant is the fifth child of six children.... Mrs. Grant was placed in a foster home for a year in Montgomery. Mrs. Grant and her mother did not have a cooperative relationship during her childhood. According to the Department of Pensions and Security records, Mrs. Grant drank excessively and ran around with the wrong crowd during her younger years. This type of behavior changed when she met Mr. Grant. Mrs. Grant obtained her GED in 1979. She completed the tenth grade at Robert E. Lee High School. She received nurses aid training at Estes and Engleside Nursing Homes. She was employed as a shift manager at Krystal's [Krystal restaurant] for three years.
"Mr. Grant is originally from Selma, Alabama in Dallas County. His parents are *245 N.I. and Vera Grant. Mr. Grant graduated from Dallas County High School in 1976. He attended George C. Wallace Junior College for two years, entering in 1976. His occupation varies in the areas of an electrician and maintenance person.
"Mr. and Mrs. Grant met in 1981 while she was employed at Krystal's. They dated for one year and married on February 7, 1982.
"Mr. and Mrs. Grant filed a petition for temporary legal custody of her half-sister, Christine Sanders, in 1982. Their petition was withdrawn due to the child's parents' reconciliation.
"Mr. and Mrs. Grant have never had a child neglect/abuse complaint filed against them. In July, 1985, Mrs. Grant came to the DPS office requesting assistance with her electric bill from Alabama Power Company. The total amount of the bill was $204.05 with a disconnect notice. Mrs. Grant had $100 toward the amount of the bill. Their financial situation was a result of her being laid off from work on 5-31-85 until 7-10-85. Mr. Grant was employed with Dixie Electric, but his salary had decreased as he was unable to work overtime. Mrs. Grant did receive $40 per week unemployment compensation. Mrs. Grant was referred to Catholic Social Services and Community Action for assistance and was instructed to contact us if any remainder needed paying. This agency did not have contact with this family again until 3-6-86.
"EMPLOYMENT AND FINANCIAL STATUS:
"Mrs. Grant is presently unemployed. Mr. Grant continues to be employed with Dixie Electric. He works forty hours per week at $5.25 per hour. The household expenses consist of the following:
"House payment$354
Electric Bill$60 (estimated)
Gas$59 (winter)$25 summer
Water and garbage$40 (every two months)
Television payment$60
Truck$180
Car$160
House insurance$212 ($73 every 2 months) [sic]
Car Insurance$135 (every 3 months)
Jackson and Armstrong, M.D.'s$10 (total $50)
Dr. Harris$10 (total $95)
Jackson Hospital$30 (total $700 on 6 accounts)
Universal Acceptance Books$25 (total $600)
St. Margaret's Hospital$25 (total $957) turned over to collection agency.
Dr. White$10 to $40 (total $150)
Dr. Felicia$5 to $10 (total $150)
Dr. McGuireSend whatever can afford (total $98)
"The family does not receive food stamps. According to Mrs. Grant, they spend $50 per month on groceries. She stated she uses coupons, seeks sales and they eat a lot of dried beans and cornbread. During the interview, Mrs. Grant smoked, yet they only spend a minimal amount on groceries.
"COMMUNITY INVOLVEMENT:
"Mr. and Mrs. Grant attend church occasionally. They attend the Assembly of God and a Baptist church. Mrs. Grant was raised in the Assembly of God Church and Mr. Grant the Baptist church. They have no particular church to attend.
"HEALTH INFORMATION:
"Mr. Grant stated he is in good health. Earl, Jr. is thin, but appears to be in good health. He has tubes in his ears. Mrs. Grant has had to have several types of surgery from gallbladder, hemmorhaging and female problems. She stated she is basically in good health.
"INTERVIEW WITH MR. AND MRS. GRANT:
"Mr. and Mrs. Grant stated the only problems they have are financial. Mrs. Grant said they fuss like all married couples. She said they had never contemplated divorce, but no one knows what the future holds. According to Mr. and Mrs. Grant, they have never been arrested or used drugs. According to Mrs. Grant once *246 a year when they celebrate their anniversary they may have an alcoholic drink. She was very quick to point out Earl would be spending the night with someone. She said she grew up in a drinking situation and refuses to live in it now.
"Mrs. Grant said before Krystal moved to Madison County, she stayed in their home a lot. According to Mrs. Grant, Krystal never gave her any problems. She said she purchased Krystal's baby bed and feels Krystal is hers.
"Mrs. Grant stated Krystal should be with her family [and] that she knew first hand how foster homes operate. Mrs. Grant feels a child does not need to be moved often and threatened if you don't behave you'll leave. Mrs. Grant was asked if she knew for a fact this is happening with Krystal or was this her opinion. Mrs. Grant said when she was in foster care she gave `information to a social worker and it was "spread" all around.' The worker clarified with Mrs. Grant that her opinion of social workers and foster parents is very low. She replied there are some who are good and some who are bad. The subject of a trial placement supervised by the Department of Pensions and Security was approached. Mrs. Grant said she would accept supervision. She also stated that Krystal deserved to have nice clothes and that is the reason they wanted to be foster parents to enable financial assistance. The question was broached of only receiving an ADC check of $59 and a Medicaid card could they financially provide for Krystal. Mr. Grant did not hesitate when responding they could.
"Mrs. Grant stated Krystal's mother is in a transition home in Selma. The last time they saw Krystal was two years ago in 1984-85. Mrs. Grant does not see any problems between Mrs. Ogle and Krystal if the child resides in their home. Mrs. Grant said if Mrs. Ogle left the house with Krystal, she would accompany her. We discussed the possibility of disruptions caused by Mrs. Ogle. Mrs. Grant stated she would `make' Ms. Ogle leave the house if she could not calm down. Mr. and Mrs. Grant stated they would be willing to transport Krystal for mental health counselling if the Department felt this was necessary.
"According to Mrs. Grant, her sister has always wanted them to have Krystal placed in their home. Mrs. Grant said they have been unable to offer their home in the past due to their financial situation. Mrs. Grant feels they are finally making progress.
"Mrs. Grant has interviewed at the State Employment Service as a Mental Health Worker I with the Glenn Ireland Developmental Center in Birmingham, Alabama. She is to receive a notice the end of March or first of April as to the status of her being hired. This employment's beginning salary is $408 biweekly. Mr. Grant has contacted several apartment complexes for employment as a maintenance manager. They plan to reside in an apartment complex if they succeed with these new employment prospects. They plan to rent the house in Montgomery. Mr. and Mrs. Grant were asked what their plans would be if the employment in Birmingham did not materialize. They stated they would remain in Montgomery. Mrs. Grant said she would retake the Mental Health Counsellor I exam and try to get employment in the Montgomery area. She said they really did not have the money to make the trip to Birmingham, but felt she had no alternative.
"Presently, Mrs. Grant helps provide care for two elderly ladies in Montgomery. They provide enough funds to purchase day care for Earl sometimes. Mrs. Grant said she enjoys helping people and this is why the Mental Health Counsellor position appealed to her.
"FAMILY COMPOSITION:
"This is a family composed of two parents and one child. It is very obvious that Mrs. Grant is the dominant role model in the nuclear family. The family's finances [expenses] exceed the salary obtained from one parent being employed. This family continues to struggle for a more sound and stable financial base by seeking employment in a higher salary range. Due to Mrs. Grant's involvement with the Department of Pensions and Security over several *247 years, she does not have a good opinion of the system. She vocalizes cooperation, yet her feelings of projection have a negative connotation. This family is struggling for stability with their natural child. To bring another child into this unstable environment could prove to be more uprooting and possibly stress [sic], causing the return of the child to foster care which could have a detrimental effect on her.
"The Resource Unit supervisor of Montgomery County Department of Pensions and Security was contacted regarding Mrs. Grant's interest in being licensed as a related foster home. After discussing their financial situation and possibility of stress due to these problems plus the past involvement of extended family members, this county feels it would not be in the best interest of a child to be placed in their home."
The trial court also concluded that Krystal's placement with the Grants would not be in her best interest. We disagree.
Mrs. Grant's statement in the report that her marriage was good, but "no one knows what the future holds," is hardly indicative of an unstable marriage. There is also no evidence to support the report's inference that Ms. Grant would not be cooperative with the Department of Pensions and Security in the future.
At the dispositional hearing, both Mr. and Mrs. Grant acknowledged the financial problems that they have faced. Mrs. Grant suffered some health problems which resulted in significant medical bills. However, the Grants' testimony at the hearing indicated that they were dedicated to meeting those obligations, and were making significant progress. Mr. Grant is steadily and gainfully employed as an electrician. At the time of the hearing, Mr. Grant was paid at a rate of $6.00 per hour, based on a 40-hour work week. He testified that he also brings in an additional $300.00 or $400.00 per month for maintenance work performed at various apartment complexes. At the time of the hearing, Mrs. Grant was actively looking for a job and appeared to have some good prospects. Moreover, the Grants were informed by a social worker at the Department of Pensions and Security that they would be eligible for financial assistance if they are approved as a foster home for Krystal.
From the evidence presented, we fail to see the same "family struggling for existence" that the social worker and the trial court found to be an unsuitable relative foster home for Krystal Ogle. Both Mr. and Mrs. Grant testified of their strong desire to care for Krystal and to provide her with a loving home. Clearly, Krystal's placement with the Grants is a suitable alternative and a less drastic measure than the termination of parental rights. Accordingly, we hold that the state failed to meet its burden of proving by clear and convincing evidence that there existed no viable alternative to the termination of Gail Ogle's parental rights. Hickman v. State of Alabama Department of Pensions & Security, 489 So. 2d 601 (Ala.Civ.App.1986).
Accordingly, the judgment of the Court of Civil Appeals is reversed and the case is remanded.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur. | September 25, 1987 |
fb4812b8-060f-43fd-a3e2-5a4f9bf01fa5 | Duke v. Jones | 514 So. 2d 981 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 981 (1987)
R. Wayne DUKE
v.
G. Paul JONES, Jr., and Samuel M. Jones.
86-80.
Supreme Court of Alabama.
September 25, 1987.
Holly L. Wiseman, Birmingham, for appellant.
James C. Barton, Patrick M. Lavette, and Robert S. Vance, Jr., of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellees.
ADAMS, Justice.
This is an appeal by R. Wayne Duke from a summary judgment granted by the Circuit Court of Jefferson County in favor of G. Paul Jones, Jr., and Samuel P. Jones (the "Jones brothers") on Duke's claim of fraud and deceit. We affirm.
The facts reveal that G. Paul Jones is chairman and Samuel Jones is vice-president of Macon Prestressed Concrete, Inc. ("MPC"), a Georgia Corporation. In February 1982, the Jones brothers met with a business broker to discuss the possibility of acquiring Southeastern Porcelain and Construction Company, Inc. ("Southeastern"), an Alabama corporation involved in the construction of fast food restaurants. Duke, the principal owner of Southeastern, and James D. Hutton, a recent purchaser of a 20 percent interest in Southeastern, began discussing the sale of Southeastern to MPC following their March 1982 meeting with the Jones brothers. Negotiations between the Jones brothers and Duke and Hutton proceeded through July 1982. Southeastern's financial status and projected earnings were reported to the Jones brothers, after which MPC's offer to purchase Southeastern was summarized in a letter from G. Paul Jones to Duke. The offer called for a cash payment at closing and promissory notes for the balance of the purchase price; the notes were to be secured *982 by Southeastern's stock. MPC's board of directors approved the proposed purchase of Southeastern; however, in a July letter to the Jones brothers, Duke broke off all negotiations.
Hutton revived negotiations approximately six months later, in early 1983, whereupon Duke sought a greater price, $2,000,000.00. In the ensuing negotiations, C. Fred Daniels was retained to represent Southeastern and MPC was represented by a Macon, Georgia, attorney, Timothy K. Adams. The terms of the sale called for MPC to pay $250,000.00 cash at closing; $200,000.00 to Duke and $50,000.00 to Hutton. The balance of the $2,000,000.00 purchase price, $1,750,000.00, was represented by MPC's notes to be paid over an eight-year period. Duke was also given a long-term employment contract.
During the negotiations, Daniels wrote to G. Paul Jones and proposed the following:
Duke signed the letter to Jones, indicating that he had "reviewed and approved" Daniels's proposal. Two days later, Daniels revised the proposed terms in another letter to G. Paul Jones. That proposal provided:
Again, Duke signed the letter, indicating he had "reviewed and approved" it.
The Jones brothers point out that in a letter to MPC's attorney, Adams, on April 8, 1983, Daniels proposed the following:
(a) Covenants.
. . . .
Duke was sent a copy of this letter, and the same terms were incorporated into the purchase agreement signed April 29, 1983.
Payments on MPC's notes to Duke and Hutton were paid by Southeastern dividends, paid through MPC, a practice approved by Southeastern's board of directors at their December 9, 1983, meeting. The dividends paid by SEPCO, Inc., were amounts necessary to pay Duke and Hutton as required by the promissory notes. Continuation of this policy through 1984 was approved by the Southeastern board and, as the appellees note, the following resolution was adopted:
Hutton, secretary for Southeastern, signed the minutes of the December 9, 1983, meeting, *983 and Duke, as agent for Southeastern, was a witness to the signing.
Contrary to projections of Southeastern's earnings, the company began losing money following its purchase by MPC, and by August 1984 Southeastern had lost approximately $1.4 million dollars. Southeastern obtained a $1 million line of credit from AmSouth Bank, which was guaranteed by MPC and its parent company, Cornell-Young Company, Inc., also a Macon, Georgia, corporation. Duke points out that "MPC then restructured its debts at the Trust Company of Georgia, converting short-term debt to long-term debt to improve the working capital ratio of the companies." Southeastern's declining financial condition complicated MPC's ability to meet its obligations. Duke agreed to defer until after July 11, 1984, the interest payment due him from MPC in January 1984. In April 1984, MPC failed to pay Duke the first principal payment of $150,000.00
G. Paul Jones wrote to Duke on June 11, 1984, and asked Duke to defer the 1984 and 1985 principal payments of $150,000.00 each until 1992 and 1993. Duke refused Jones's request. On July 17, Jones reiterated the financial necessity of deferring principal payments. Jones said that Southeastern's financial decline not only made it difficult for Southeastern to obtain bonding and get new jobs, but had also made it impossible for MPC, as guarantor of Southeastern's debt, to meet its obligations to Duke and Hutton. The July 17 letter detailed MPC's efforts to restructure debt and to regain financial stability. Jones again recommended that Duke agree to defer annual payments of principal for 1984 and 1985 until 1992 and 1993, and said that MPC would probably be forced to file for Chapter 11 reorganization if Duke did not defer payment.
Duke filed suit on August 24, 1984, and demanded foreclosure of the pledge of Southeastern's stock, which was the security for MPC's notes to Duke and Hutton. He also asked for damages from MPC and G. Paul Jones, Jr. MPC then filed for Chapter 11 reorganization and Duke's suit against MPC and G. Paul Jones, Jr., was stayed. Southeastern filed suit against Duke and Jack's Food Systems, Inc., claiming that Duke and Jacks had conspired to destroy Southeastern's business by withholding payments due Southeastern from Jacks, an allegation the defendants denied. Duke then filed this third-party suit against the Jones brothers, MPC, and other MPC directors, alleging fraud. The trial court dismissed the action against six of the directors for lack of in personam jurisdiction; that dismissal was a judgment reversed by this Court on October 3, 1986, Duke v. Young, 496 So. 2d 37 (Ala.1986).
The issues presented are:
The essence of Duke's appeal is that the Jones brothers and the other directors of MPC fraudulently conspired to conceal from Duke that payments on the promissory notes given to Duke and Hutton would be made exclusively from Southeastern's earnings as paid through MPC. Duke cites, at length, the deposition testimony of Daniels, the attorney who represented Duke and Hutton in the sale of Southeastern to MPC. Daniels testified that the obligation of MPC to pay on its notes to Duke and Hutton was never restricted exclusively to the proceeds derived from Southeastern. In fact, Daniels said that if such a restriction had been communicated to him, he would have advised Duke and Hutton not to sell the capital stock of Southeastern.
Duke claims that the July 17, 1984, memorandum from G. Paul Jones was the first suggestion he had that MPC intended to pay on its promissory notes to Duke and Hutton only from profits generated by *984 Southeastern. The July 17 memorandum provides in part:
The same memorandum also stated what steps MPC was taking to improve collections and to otherwise compensate for Southeastern's sharp decline following its purchase from Duke and Hutton. Duke argues that two other members of MPC's board confirmed that the board intended that Southeastern's dividends would be used to pay on the promissory notes and that this confirmation is further evidence of fraudulent concealment. We find no evidence of fraud here.
Nowhere in the July 17, 1984, memorandum from G. Paul Jones to Duke, or anywhere else, do we find evidence that unless Southeastern's profits were sufficient to make payments on the notes, MPC intended not to honor its obligations to Duke and Hutton. The promissory notes represent the unconditional obligation of MPC to pay the debt created by the purchase of Southeastern.
The July 17 memorandum did advise Duke that MPC could not meet its 1984 and 1985 obligations on the notes and asked for a deferral of these payments. The facts indicate that Southeastern's dismal performance, plus the unprofitability of the other MPC companies, in 1983, combined to severely burden MPC's ability to meet its obligations. The July 17 memorandum did nothing more than restate what Duke already knew: that dividends paid by Southeastern to MPC could or would be used to meet MPC's obligation to pay on the promissory notes.
In the presale negotiations, Duke "reviewed and approved" the reference which became part of the contract, i.e., that Southeastern would not transfer money or property to MPC "in excess of the amounts necessary to pay the principal and interest on said notes." Duke cannot argue persuasively that he was unaware that MPC intended to use profits from Southeastern to pay on the notes. No evidence exists to support the allegation that MPC ever sought to avoid its obligations to Duke and Hutton. MPC's plan to use Southeastern's dividend payments to pay the notes might, in retrospect, be considered an unfortunate business decision, but there is no evidence that Duke was unaware of MPC's intent.
As appellee has argued, the sale of Southeastern to MPC was a transaction conducted over a period of months between experienced businessmen who dealt with one another in arm's-length negotiations. Assuming, arguendo, that MPC had not disclosed its intention to pay the notes from Southeastern's dividends, MPC, would nevertheless, have had no duty to disclose to Duke or Hutton its payment plan. Ala. Code (1975), § 6-5-102, provides:
Duke concedes that no confidential relationship existed between the parties. We find no "particular circumstances of the case" that would have required disclosure. In Trio Broadcasters, Inc. v. Ward, 495 So. 2d 621 (Ala.1986), we said that the phrase "particular circumstances" in § 6-5-102, supra, "necessarily requires a case by case consideration of several factors." Id., at 624. In Trio Broadcasters, Justice Houston quoted from Jim Short Ford Sales, Inc. v. Washington, 384 So. 2d 83 (Ala.1980):
Id. at 86-87. We held:
Trio Broadcasters, supra, at 624. Here, as in Trio Broadcasters, nothing about the business transaction between Southeastern and MPC suggests unequal bargaining power or anything out of the ordinary. Both parties were free to investigate and were apparently well acquainted with the world of business. Assuming, then, that even if Duke was not aware of MPC's intention to make payments on the notes from Southeastern's dividends, we find no duty on the part of MPC to disclose such an intention. We held, in Trio Broadcasters, supra
Id., at 624. See Mudd v. Lanier, 247 Ala. 363, 24 So. 2d 550 (1945); Collier v. Brown, 285 Ala. 40, 228 So. 2d 800 (1969); Marshall v. Crocker, 387 So. 2d 176 (Ala.1980); Cooper & Co. v. Bryant, 440 So. 2d 1016 (Ala. 1983). In any event, Duke's allegation of willful misrepresentation is not supported by the facts of this case. Duke and Hutton knew that Southeastern's profits could or would be the source of funds MPC could use to make payments on the notes. MPC's inability to make the note payments as scheduled does not prove willful misrepresentation. The unconditional obligation to pay Duke and Hutton was manifested by MPC in the promissory notes. That absolute obligation of MPC belies Duke's allegation that MPC willfully misrepresented that the notes would be paid only from Southeastern's profits. Clearly, MPC intended to use Southeastern's profits to pay the notes, but MPC absolutely promised to pay Duke and Hutton; such is the nature of a promissory note. We have held that an intent to deceivepresent at the time the promise of future performance was mademust be shown in order to recover for fraud. We have held, further:
Purcell v. Spriggs Enterprises, Inc., 431 So. 2d 515, at 519 (Ala.1983). See Dobbins v. Dicus Oil Co., 495 So. 2d 587 (Ala.1986).
In the present case, MPC apparently relied upon projected earnings of Southeastern and determined that Southeastern's profits would be more than sufficient for MPC to meet its obligation to pay Duke and Hutton. In fact, Southeastern's consistent decline was more than MPC could financially manage and, at the same time, continue to pay on its notes to Duke and Hutton. The evidence presented shows clearly that Duke was aware that profits generated by Southeastern would or could be used as the source from which MPC would pay on the notes. MPC apparently relied on Southeastern's projected success in order to make payments to Duke and Hutton; however, no evidence exists to show that MPC ever considered that its obligation to repay the notes was anything but unconditional. MPC asked Duke to defer the 1984 and 1985 payments in order to allow MPC to regain financial stability, not to disavow its absolute obligation to pay the notes. MPC's reliance on Southeastern's profitability as the principal means of repaying its obligation to Duke and Hutton, although perhaps unwise, was *986 neither an unusual nor a fraudulent practice.
Duke also claims that the facts support his allegation that the directors of MPC intentionally concealed a material fact and deceived him. As we have said, supra, the parties in this case were knowledgeable businessmen who dealt with one another at arm's-length and had equal ability to inquire into the business affairs of the other. Duke's allegation of deceit is without merit. The fact that MPC did not volunteer its intention to rely principally upon profits from Southeastern to make payments on the notes to Duke and Hutton is not fraud or deceit.
Ala.Code (1975), § 6-5-103 provides, in part:
The facts in this case do not support Duke's allegation that a material fact, i.e., MPC's intentions as to method of repayment, was concealed.
We hold that there is no evidence to support appellant's allegations of fraud and deceit. The Circuit Court of Jefferson County did not err in granting summary judgment in favor of appellees. Therefore, the judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., concur.
BEATTY, J., dissents.
BEATTY, Justice (dissenting).
I disagree with the majority's opinion for two reasons. First of all, although in his complaint plaintiff stated a claim for suppression squarely under Code of 1975, § 6-5-102, in his reply brief plaintiff states that his "claim is for intentional fraud, active concealment." In their brief, the defendants argue that there is no confidential relationship between the parties and that the particular circumstances of this case do not give rise to a duty on the part of the defendants to disclose. In his reply brief, however, the plaintiff responds to the defendants' lack-of-duty argument this way:
Thus, it appears that the gravamen of plaintiff's claim is that of active concealment and intentional misrepresentation, thereby obviating the requirement that plaintiff establish a duty to disclose arising out of the relationship of the parties or the particular circumstances of the case, but nevertheless requiring plaintiff to adduce evidence of an intent to deceive. The majority, however, embraces the defendants' argument that no duty to disclose is present in this case, and, on that basis, as well as on its view that there is no evidence of fraud here, affirms summary judgment *987 as to both the § 6-5-102 suppression claim and plaintiff's claim for willful misrepresentation and deceit under § 6-5-103. Because the duty-to-disclose analysis is misplaced in this case, the majority's reliance on that principle as a basis for affirming summary judgment is erroneous.
I also disagree with the majority's assessment of the evidence in this case. The plaintiff clearly met his burden of establishing a scintilla of evidence of an intent to deceive on the part of the defendants. For that reason, I would reverse the summary judgment in favor of the defendants.
The gist of plaintiff's claim for willful misrepresentation is that, as an inducement to sell his business (Southeastern) to MPC and accept MPC's payment terms, the defendants, as directors of MPC, represented that the MPC note for $1,550,000 would be paid to the plaintiff by MPC according to its terms. Plaintiff claims that this representation constituted a willful misrepresentation because, at the time it was made, these defendants, along with the other directors of MPC (apparently also defendants), knew that they did not intend to pay the note according to its terms; rather it was their intention from the beginning to pay the installments due the plaintiff exclusively from Southeastern's earnings paid to MPC as dividends. In other words, the plaintiff claims that the defendants did not intend to pay from other MPC revenue sources the installments due plaintiff in the event Southeastern failed to generate dividends in an amount sufficient to meet those installments.
The plaintiff relies on the July 17 memorandum, the relevant portions of which are quoted in the majority opinion, as constituting at least a scintilla of evidence of the defendants' willful misrepresentation. The majority nevertheless "finds" that "[t]he July 17 memorandum did nothing more than restate what Duke already knew: that dividends paid by Southeastern to MPC could or would be used to meet MPC's obligation to pay on the promissory notes." The majority further finds "no evidence that Duke was unaware of MPC's intent." However, in opposition to defendants' motion for summary judgment, plaintiff adduced evidence establishing that, while he was aware that some or even all of the Southeastern dividends would be used by MPC to pay the installments due on the note, he did not know when he made the sale that the defendants intended to restrict payment of the note solely to the dividends MPC earned from Southeastern. Stated differently, plaintiff established that he did not know that his getting paid turned on whether the company he sold to MPC generated dividends sufficient to meet the installments due him. Plaintiff further established that he relied on the defendants' misrepresentations, and that had he known of the intended restriction, he would not have sold his shares on such payment terms. Thus, genuine issues of material fact exist as to plaintiff's claim for misrepresentation, and therefore, I would hold summary judgment was improper. | September 25, 1987 |
6a6a9892-bdd2-48c5-ab86-96e813cb57cb | Sargent v. State | 515 So. 2d 729 | N/A | Alabama | Alabama Supreme Court | 515 So. 2d 729 (1987)
Ex parte State of Alabama.
(Re Mary Frances SARGENT
v.
STATE of Alabama).
86-491.
Supreme Court of Alabama.
September 25, 1987.
Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for petitioner.
Curtis M. Simpson, Florence, for respondent.
TORBERT, Chief Justice.
We granted the petition for writ of certiorari to consider whether proof of prior convictions by introduction into evidence of "case action summary sheets" or "trial docket sheets" is permissible.
We cannot distinguish this case from Harrison v. State, 465 So. 2d 475 (Ala. Crim.App.1984), on the "case action summary sheet"/"minute book" issue. Harrison held that "[t]he case action summary is official, and indeed the only record of conviction which the [district court] clerk's office retains." Thus, the "case action summary sheet" maintained by the district court clerk's office (or a certified copy thereof), properly entered and duly certified, may be offered as proof of prior convictions.[1] However, the content of the "case action summary sheet" should include the pertinent information found in the "minute books." That is necessary in order for the document to be used to show a valid prior conviction. Consequently, the record of conviction should show or the state must otherwise prove, among other things, that the defendant had counsel or waived the right to counsel, because uncounseled prior convictions cannot be used either to support a finding of guilt or to enhance punishment for another offense, Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967); Palmer v. State, 401 So. 2d 266 (Ala.Crim.App.1981), and presuming waiver of the right to counsel *730 from a silent record is impermissible. Burgett, supra.
The record reveals that most of the records of prior convictions introduced did not reflect that the defendant had counsel or had waived the right to counsel, and the state made no attempt to otherwise show that he had. Therefore, it was error to admit the records of prior convictions that did not reflect that the defendant had counsel or had waived the right to counsel.
Furthermore, it was not harmless error to admit those inadmissible prior convictions on the basis that there were some admissible prior convictions. Introduction of inadmissible convictions is reversible error unless the improper introduction is "`harmless beyond a reasonable doubt' within the meaning of Chapman v. California, 386 U.S. 18 [87 S. Ct. 824, 17 L. Ed. 2d 705] [1967]." Burgett, supra, 389 U.S. at 115, 88 S. Ct. at 262. Chapman counseled against concluding that admission of constitutionally defective evidence is harmless because there was other overwhelming evidence of guilt. While we consider the question to be close, the introduction of the constitutionally defective evidence is not "harmless beyond a reasonable doubt."
AFFIRMED.
JONES, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Acts of Alabama 1987, Act No. 87-604, enacted subsequent to the trial of this case, also authorizes the use of case action summary sheets. | September 25, 1987 |
3bb70e2c-93ad-46c3-ba2f-ac7f69828b14 | Garrard v. Lang | 514 So. 2d 933 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 933 (1987)
Lela GARRARD
v.
Virgil Odis LANG, Administrator of the Estate of Barney Garrard, Deceased.
85-1502.
Supreme Court of Alabama.
September 18, 1987.
William H. Atkinson of Fite, Davis, Atkinson and Bentley, Hamilton, for appellant.
Roger H. Bedford, Sr. of Bedford, Bedford & Rogers, Russellville, for appellee.
ADAMS, Justice.
This is the second time this case has been before this Court. See Garrard v. Lang, 489 So. 2d 557 (Ala.1986). This second appeal is from a judgment on remand wherein the trial court entered an award for exempt property and elective share to appellant Lela Garrard, but failed to award her a homestead allowance. The trial court also granted appellee Virgil Lang's motion for a set-off for monies paid by Lang to Garrard's *934 sons. These payments were allegedly made in consideration of the sons' agreements not to contest the will.
This is the second time this case has been before the Court on appeal. Lela Garrard (hereinafter "Garrard") was the wife of Barney Garrard, deceased. When Barney Garrard died, he left his wife and two sons $10.00 each, and left the remainder of his estate to his nephew Virgil, and Virgil's wife, Annie Lois Lang. The estate consisted of $14,051.61, and a 1975 Ford Torino automobile. Lang took possession of the assets and distributed them as directed in the will.
After the distribution, Lang paid the sons $3,000.00, and paid Mrs. Garrard $1,000.00. Lang asserts that all parties agreed that those payments would satisfy any claims they might have against the estate. Garrard maintains that she had no knowledge as to why the money was distributed and that she made no agreement concerning it. Other than the checks Lang wrote, there is no record of the transaction.
At the first adjudication, the trial judge found that Garrard was not entitled to an elective share, homestead allowance, or exempt property allowance. We reversed and remanded the cause for a determination of the appropriate elective share, homestead, and exempt property allowances due Garrard. 489 So. 2d 557.
The trial court then entered an order, after receiving no new evidence, allowing Garrard $4,294.43 as her elective share and $3,500.00 exempt property allowance. The court also entered a $1,010.00 set-off for amounts previously paid to Garrard by Lang. Lang made a motion to increase the set-off by $3,020.00, to include the amount he had paid to Garrard's sons. Garrard made a motion for the court to award her a $6,000.00 homestead allowance. The trial court granted Lang's motion and denied Garrard's. Garrard appeals, asking for a $6,000.00 homestead allowance and asking that the $3,020.00 set-off awarded against her claims be reversed.
The relevant statutes are clear. Homestead allowance is awarded irrespective of a surviving spouse's decision to take an elective share. Alabama Code (1975), § 43-8-74. A surviving spouse, of a decedent who was domiciled in Alabama, is entitled to $6,000.00 as a homestead allowance, which is exempt from and has priority over all other claims. Homestead allowance is in addition to any other share passing to the spouse. Alabama Code (1975), § 43-8-110.
Prior to the adoption of the new Probate Code, the homestead allowance could be drawn only from real property in the estate. Alabama Code (1958), Title 7, § 661, Jaffrey v. McGough, 88 Ala. 648, 7 So. 333 (1889). We now hold that under the new Probate Code, the homestead allowance may be drawn from personal property or realty. In today's society, where many people never own real estate, the narrow definition embodied in the older statute and cases defeats the purpose of the exemption. Uniform Probate Code Practice Manual 57 (R. Wellman ed. 1972).
Appellee Lang contends that solvency of an estate has a negative effect on the surviving spouse's right to take a homestead allowance and an exempt property allowance in addition to an elective share. This is a misreading of the statutes. The rights to elective share and exemptions are not tied to solvency.
Appellee further argues that this Court's failure in its earlier opinion to specify amounts for the elective share and exemptions was an indication that the trial court should use its discretion in determining those amounts. The amounts to be distributed are stated clearly in the statutes: one-third of the estate for the elective share, Alabama Code (1975), § 43-8-70; $3,500.00 for exempt property, § 43-8-111; and $6,000.00 for the homestead allowance, § 43-8-110. The trial court erred when it calculated Garrard's elective share as being one-third of the gross estate. The gross estate should have been reduced by the homestead and exempt property allowances prior to calculation of Garrard's elective share.
Lang again argues that Garrard, in accepting her check for $1,010.00, waived the claims that she asserts in this case. This *935 issue was decided in the earlier appeal. Garrard v. Lang, 489 So. 2d 557 (Ala.1986). At that time, we found that there was no informed waiver. By definition, waiver requires that the right relinquished be a known right. When a party relinquishes such a right, he or she does so "with full knowledge of the material facts." "Waiver," Blacks Law Dictionary, (5th ed. 1979). We have stated that waiver is a voluntary relinquishment of a known right or benefit. City of Montgomery v. Weldon, 280 Ala. 463, 195 So. 2d 110 (1967). Since we have previously determined that Garrard was unaware of the benefits she was relinquishing, we must conclude that there was no valid waiver.
Furthermore, the $3,020.00 Lang claims as a set-off against Garrard's rights of elective share, homestead, and exempt property allowances, was paid not to her, but to her sons, who are not parties in this action. The trial court exceeded its jurisdiction, therefore, in attempting to grant relief against Garrard. The proper parties, Garrard's sons, were never joined in the action. Hoppers Co. v. Gulf Welding & Const., Inc., 285 Ala. 331, 231 So. 2d 896 (1970).
We find that Garrard was entitled to an elective share, homestead allowance, and exempt property allowance. The elective share is determined after homestead and exempt property allowance have been subtracted from the gross estate. Furthermore, Lang had no claim against Garrard for a $3,020.00 set-off against money paid to her sons. We, therefore, reverse the judgment and remand this cause for further proceedings.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES and SHORES, JJ., concur.
BEATTY, J., concurs specially.
BEATTY, Justice (concurring specially):
I write specially to point out that the authority for this Court's holding that the elective share is to be determined after the homestead allowance and exempt property have been deducted from the decedent's gross estate is found in the language of the pertinent statutes, to-wit:
"§ 43-8-74
"§ 43-8-110
(Emphasis added.)
"§ 43-8-111 | September 18, 1987 |
14663278-9593-466e-99ff-ed7b16b6f958 | Ex Parte Illinois Cent. Gulf R. Co. | 514 So. 2d 1283 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1283 (1987)
Ex parte ILLINOIS CENTRAL GULF RAILROAD COMPANY.
(In re Faye HORTON, as Mother and Next Friend of Jeffrey Allan Wiginton v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, et al.)
ILLINOIS CENTRAL GULF RAILROAD COMPANY
v.
Faye HORTON, as Mother and Next Friend of Jeffrey Allan Wiginton.
86-204, 86-205.
Supreme Court of Alabama.
September 21, 1987.
*1284 Hobart A. McWhorter, Jr., and Joseph B. Mays, Jr., of Bradley, Arant, Rose & White, Birmingham, for Illinois Cent. Gulf R.R.
Roger H. Bedford, Sr., and Robert I. Rogers, Jr., of Bedford, Bedford & Rogers, Russellville, for Horton.
JONES, Justice.
This is an appeal from a default judgment entered against Illinois Central Gulf Railroad Company ("ICG") in the amount of $500,000. The Circuit Court of Franklin *1285 County refused to vacate the default judgment, and entered an order pursuant to the provisions of Rule 54(b), A.R.Civ.P., making the judgment final as to ICG. We reverse and remand.
On the night of March 6, 1986, Guy Wayne Jenkins lost control of the car in which he and passenger Jeffrey Allan Wiginton were riding. The car went through the side railings of a one-lane wooden bridge, owned and maintained by ICG, and then over an embankment onto railroad tracks also owned and maintained by ICG. Wiginton died in the accident. Faye Horton, as mother and next friend of Wiginton, filed a wrongful death action in the Circuit Court of Franklin County against Guy Wayne Jenkins, the Marion County Commission, and ICG. Mrs. Horton's allegations of negligence on the part of ICG were as follows:
The summons and complaint were sent by certified mail to ICG's agent in Haleyville, Alabama, and were received on August 2, 1986. The agent promptly forwarded the summons and complaint to ICG's office in Chicago, Illinois, and the documents were received there on August 6, 1986. The Chicago office directed the summons and complaint to attorney Hobart A. McWhorter, Jr., at the office of Bradley, Arant, Rose & White in Birmingham, where the documents were received on August 8, 1986. The summons and complaint were opened by Mrs. Carole Estes, secretary to McWhorter, and, in accord with standard office practice, Mrs. Estes forwarded the documents to Joseph B. Mays, Jr., who normally acknowledged the receipt of such papers and normally filed an initial appearance in such matters.
Mays, however, was out of the office, having left the previous day for Dothan, Alabama, where he was preparing for a lengthy antitrust trial. Mays's trial began on August 11, 1986, and did not conclude until September 3, 1986; and, during that time, Mays returned to his Birmingham office only on weekends and on two days when the court was not in session. The file did not come to Mays's attention when he returned to the office on September 4.
After ICG failed to respond to the summons and complaint, Mrs. Horton filed an application for default judgment against ICG on September 4, 1986. On September 5, 1986, the trial court made an entry of default against ICG, and on September 11, 1986, the court allowed Mrs. Horton to present testimony in support of an award of damages. ICG was not informed of this hearing. The trial court entered a default judgment in favor of Mrs. Horton in the amount of $500,000 on September 12, 1986.
ICG first learned of the September 5 entry of default on September 12, 1986, when its Haleyville office received a notice in the mail. The ICG agent immediately telephoned ICG's Chicago office, and a telephone call was then made from Chicago to McWhorter in Birmingham, giving McWhorter his first personal knowledge of this lawsuit and of the entry of default. McWhorter immediately prepared an answer *1286 and a motion to set aside default, which he mailed to the clerk of the circuit court on September 12, 1986. McWhorter also telephoned the plaintiff's attorney to advise him of McWhorter's representation of ICG, and McWhorter then sent the plaintiff's attorney a copy of the answer and the motion to set aside default.
On September 15, 1986, the circuit court received and filed ICG's answer and its motion to set aside default, supported by the affidavit of McWhorter. On September 16, however, ICG's Haleyville office received notice of the September 12 entry of default judgment against ICG and the award of $500,000 damages to Mrs. Horton. Upon learning of the entry of default judgment, McWhorter filed with the circuit court a motion to set aside default judgment, supported by McWhorter's affidavit, on September 19, 1986. After a hearing on September 29, 1986, the trial court, on October 8, 1986, entered an order denying ICG's motion to set aside the default judgment. After a hearing, ICG's motion for reconsideration was denied by the trial court. This appeal followed.[1]
ICG makes several arguments in support of its contention that the default judgment is due to be set aside as void, voidable, or premised upon error: 1) That service of process was not proper because Horton failed to file a written request for service by certified mail, as required by Rule 4.1(c)(1), A.R.Civ.P.; 2) that the default judgment should be set aside because there was no proof that Mrs. Horton, as mother of the deceased minor child, had the authority to maintain a wrongful death action; 3) that the trial court's award of damages was improper because Mrs. Horton failed to waive the written jury demand she had made, as required by Rule 38, A.R.Civ.P.; 4) that the default judgment is void because the complaint sets forth inconsistent claims; and 5) that the trial court abused its discretion when it refused to set aside the default judgment.
Because we reverse and remand as to the fifth issue presented (abuse of discretion), an in-depth treatment of each of the first four issues is unnecessary. Suffice it to say, after careful consideration, we find no basis for reversal with respect to any of the first four claims of error.
ICG maintains that in situations where the requisites for granting a Rule 60(b) motion may not be met, a Rule 55(c) motion may, nevertheless, be granted. Therefore, contends ICG, the trial court erred when it analyzed ICG's Rule 55(c) motion by the requirements of Rule 60(b). We agree.
The trial court entered the following order:
"July 29, 1986Complaint filed and summons issued
"September 12ICG [mails] answer and motion to set aside judgment [answer filed in clerk's office on September 15]
Although the introductory clause of the trial court's order reflects a Rule 55(c) hearing, the trial court clearly perceived ICG's motion as invoking Rule 60(b); thus, it tested the motion under the Rule 60(b) "excusable neglect" standard. Or, at the very least, the trial court perceived the applicable standards under Rules 55(c) and 60(b) as being the same. Whether the trial court would have abused its discretion in denying a 60(b) motion, filed beyond the 30-day period following the default judgment, we need not decide. What we do decide, within the scope of the precise issue here presented, is that the Rule 55(c) 30-day period contemplates a more liberal exercise of the trial court's discretion in favor of setting aside default judgments.
This difference in the standards applicable under the two rules is clearly reflected in the language of Rule 55(c), granting to the trial court the unrestricted power to act on its own motion or "on the motion of a party filed not later than 30 days after the entry of the judgment." The absence of grounds as a requisite for a Rule 55(c) motion stands in sharp contrast to the enumerated grounds required by Rule 60(b). That Rule 55(c) contemplates that the trial court will liberally exercise its discretion in *1288 favor of setting aside a default judgment under the 30-day provision is also reflected in the Committee Comments: "[Any reference to Rule 60] was eliminated in order to insure the court's power to set aside a default judgment in 30 days in an instance where Rule 60 might not afford justification." In this same vein, the 1984 amendment to Rule 55(c) "continues the power of the court to set aside a default judgment within 30 days on its own motion, but it is intended to insure also that when a party has filed a motion for relief from default judgment, the court can act on the motion beyond the 30 days, so long as the motion is filed within 30 days after the entry of the default judgment," subject, of course, to the 90-day limitation of Rule 59.1.
Our holding is not to be understood as saying that the language of Rule 55(c)"the court may also set aside a judgment by default"will, in every instance, be interpreted as an unconditional mandate to set aside the default judgment where a party has filed a motion to do so within 30 days after its entry. For example, the trial court's exercise of its discretion to deny such a motion will be affirmed where the movant is found to have intentionally engaged in conduct evidencing disrespect for the judicial system.
We are aware that our recognition of a distinction between the standards applicable under these two rules of civil procedure effectively overrules language to the contrary in Elliott v. Stephens, 399 So. 2d 240 (Ala.1981);[2] but we are not to be understood as eliminating the requisite allegation and proof of a meritorious defense to the action, whether the motion to set aside a default judgment is filed pursuant to Rule 55(c) or Rule 60(b). See Surette v. Brantley, 484 So. 2d 435 (Ala.1986). To meet the meritorious-defense element, the movant need not satisfy the trial court that the movant would necessarily prevail at a trial on the merits, only that the movant is prepared to present a plausible defense. Given the instant plaintiff's theory of recovery, ICG's factual basis for denying liability, and the resultant uncertainty of the outcome of the plaintiff's claim upon trial, we find that ICG met its meritorious-defense burden.
Thus, because ICG presented a reasonable explanation for its delay in filing an appearance and showed a meritorious defense to the claim, we hold that the trial court abused its discretion in not granting the timely filed Rule 55(c) motion.
AS TO CASE NO. 86-204: PETITION DISMISSED.
TORBERT, C.J., and MADDOX, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
AS TO CASE NO. 86-205: REVERSED AND REMANDED.
TORBERT, C.J., and SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX and BEATTY, JJ., concur in part and dissent in part.
MADDOX, Justice (concurring, in part; dissenting, in part).
I agree that the defendant's petition for writ of mandamus to require the trial judge to set aside the entry of a default judgment in this case is due to be dismissed, and I agree that on appeal the judgment of the trial court must be reversed insofar as it awarded the plaintiff $500,000, but I must respectfully dissent as to that aspect of the opinion which holds that the trial court abused its discretion in refusing to set aside the default judgment it had entered against this defendant insofar as the question of liability is concerned.
The Court concludes that certain statements in this Court's case of Elliott v. Stephens, 399 So. 2d 240 (Ala.1981), are incorrect, *1289 and the majority not only overrules that case, but establishes a rule of appellate review of a trial judge's ruling on a motion to set aside a default judgment that I consider to be contrary to the rule that has been applicable to default judgments, both before the adoption of the Rules of Civil Procedure and subsequent thereto. The majority states the rule as follows: "The court may also set aside a judgment by default."
I am fully aware that the principal considerations in determining whether a particular defendant has shown that he is entitled to have a default set aside are (1) whether the defendant has intentionally flouted the judicial process, (2) whether the plaintiff would be prejudiced if the default is set aside, and (3) whether the defendant has presented a meritorious defense. However, I believe the Court here has misapplied the law regarding element (3).
In this case, it is apparent that the failure of the defendant to respond was because of the neglect of defendant's counsel, and maybe the majority's result is based upon the premise that a failure to file a responsive pleading is not sufficient to support the entry of a default judgment, and maybe I should concur with that judgment, but I am deeply troubled by the statement in the majority opinion that a "movant [who] presents a reasonable explanation for [his] delay in filing an appearance and has shown a meritorious defense to the claim" is entitled to have a default judgment set aside. I believe this rule effectively eliminates the language of Rule 55, which states that it is in the trial court's discretion to set aside a default.
I am quite aware that default judgments are not favored by the courts. I stated that principle in Elliott v. Stephens, 399 So. 2d 240 (Ala.1981). I am also aware that a default judgment should not be granted when there is doubt as to the propriety of a default judgment. Oliver v. Sawyer, 359 So. 2d 368 (Ala.1978). This Court should not reverse the judgment of the trial court unless there was an abuse of discretion.
Roberts v. Wettlin, 431 So. 2d 524, 526 (Ala. 1983).
The facts of this case show that the trial judge could have found that ICG was served on August 2, 1986, and that its agent promptly notified the central office in Illinois, and that the central office immediately mailed the complaint to the attorney for ICG in Birmingham, and that the complaint was received in its attorney's office on August 16, 1986, but that the attorneys failed to answer the complaint within 30 days.
I would also point out that, even assuming that the trial court considered the motion to set aside the default as one filed pursuant to Rule 60(b), I would reach the same result in this case. This Court, in refusing to set aside an entry of default, recently stated in Surette v. Brantley, 484 So. 2d 435, at 435-36 (Ala.1986):
This Court, in Elliott v. Stephens, supra, stated that this Court has the same discretion in deciding whether to grant or deny a default judgment under Rule 60(b) as it has under Rule 55(c). I realize that the majority now overrules that case, but the majority does not deal with the standard of review set out in Roberts v. Wettlin, supra.
I am of the opinion, because I find that the trial court correctly held a hearing and ruled on the Rule 55(c) motion, and because I find that there was no abuse of discretion in the trial court's refusal to set aside the default judgment, that the entry of a default judgment on the question of liability in this case should be affirmed; therefore, I dissent as to that aspect of the opinion.
Applying the rule of Roberts, and based on all the facts and circumstances of this case, I do not believe that the movant has shown that the trial judge "clearly abused his discretion." Clearly, a movant should be allowed to meet the burden of showing a clear abuse, based upon "a reasonable explanation for [his] delay," as held by the majority.
I recognize that the majority has coupled its standard of "reasonable explanation" with a requirement that the movant show a meritorious defense, but even the coupling of these two requirements fails to convince me that the trial judge "clearly abused" his discretion in this case. Roberts v. Wettlin, 431 So. 2d 524, 526 (Ala.1983).
In its initial motion to set aside the default judgment, ICG claimed that it was entitled to have the default judgment set aside "on the grounds that ICG's default is excused by reason of excusable neglect, and that ICG has a meritorious defense of this cause as set forth in the answer [previously] filed by ICG." Attached to the motion was an affidavit of ICG's counsel, in which he set out many of the facts contained in the trial judge's order, and in a section entitled "ICG's Defenses," stated, in part, as follows:
ICG's counsel attached to his affidavit a copy of an accident report prepared by investigating officer R.J. Thomas. A copy of that accident report is attached to this special opinion as Appendix A.
ICG's counsel also attached several photographs of the accident scene. Twelve of those photographs, made the day after the accident, and taken from points 500, 400, 350, 300, 200, 150, 100, 80, 75, 60, 40, and 20 feet west of the bridge, were also attached to the motion to set aside the default. The other photographs were of the bridge, the accident scene, and the vehicle itself. ICG's counsel concluded in his affidavit that "the accident occurred as a proximate result of the fashion in which the vehicle was being operated on the occasion of the accident." Counsel also stated that "[t]he pictures illustrate the condition, design *1291 and construction of the bridge and illustrate that all features and characteristics of the bridge are open and obvious."
The majority concludes that the defendant has a meritorious defense, but based on the evidence that was before the trial judge at the time he was requested to set aside the default judgment, I cannot conclude that the trial judge "clearly abused his discretion" in refusing to set the default judgment aside on the issue of ICG's liability. The pictures and the accident report illustrate that ICG owned and maintained a one-lane wooden bridge over its tracks, and that a motorist approaching the bridge from the west on the two-lane asphalt road would have to negotiate a curve in order to traverse this one-lane bridge. The accident report also indicates that the speed limit at the accident scene was 55 mph, and that the estimated speed of the driver was 50 mph. Even though counsel, in his affidavit, states that the condition of the bridge was "open and obvious," I cannot conclude that the trial judge would have clearly abused his discretion in finding that the condition of the bridge was not open and obvious. The trial judge could have found that the pictures themselves showed that a view of the bridge was somewhat obstructed by trees.
I am aware that there was evidence presented to the trial judge in a subsequent "motion to set aside default judgment and for reconsideration of the court's order entered October 8, 1986" that the driver of the vehicle may have been exceeding the speed limit. The accident report does not so indicate. I am also aware that ICG presented evidence in connection with this second motion that it was not negligent in the maintenance of the bridge, and that there had not been a previous accident at the bridge. I would point out, however, that the deceased was a passenger in the vehicle, not the driver; therefore, there is some question of the imputation of the driver's negligence to him.
I recognize that suit papers can get misplaced, and sometimes these errors are recognized by counsel representing the other side of the case and are accepted as mistakes.
Other trial judges, based upon these same facts, may have granted the motion, but as I view my role as an appellate judge, I am not at liberty to regulate a trial judge except when it is shown that he has "clearly abused his discretion." Roberts v. Wettlin. Because I believe the majority has adopted a new and different standard of appellate review in this case, and has incorrectly concluded that the trial court abused its discretion in refusing to set aside the default judgment, I must respectfully dissent as to that aspect of the opinion which holds to the contrary. Of course, I agree that the majority correctly holds that there is "no basis for reversal with respect to any of [the movant's] first four claims of error."
Based on the foregoing, I concur in part, but I must respectfully dissent in part.
BEATTY, J., concurs.
*1292
*1293
[1] After the trial court denied ICG's motion for reconsideration, ICG filed a petition for a writ of mandamus with this Court, requesting that we require the trial court to vacate and set aside the default judgment entered against ICG. The plaintiff, in opposition to the petition, asserted that mandamus was not the appropriate remedy for setting aside a default judgment, arguing that the trial court's order fixing damages was a final judgment under the provisions of Rule 54(b), A.R.Civ.P., and would, therefore, support an appeal. ICG maintained that mandamus was the proper remedy by which this Court could exercise its supervisory jurisdiction in a case of abuse of discretion by the trial court in denying a motion to vacate a default judgment.
This Court determined that the trial court had failed to make an appropriate order pursuant to Rule 54(b) when it entered the default judgment against ICG. The cause was remanded to the trial court and a Rule 54(b) order was entered. This Court then determined that, because a final judgment which would support an appeal had been entered, the petition for a writ of mandamus was due to be dismissed. See Ex parte Newco Mfg. Co., 481 So. 2d 867 (Ala.1985).
[2] For the sake of clarity, we note that Elliott was decided before the adoption of the 1984 amendment to Rule 55(c); thus, the trial court, not having ruled on the defaulting party's Rule 55(c) motion within 30 days of the entry of the default judgment, was acting pursuant to the standard applicable under Rule 60(b). Therefore, the statements in Elliott that are hereby overruled are dicta. | September 21, 1987 |
99741d7b-6cdf-4ac8-9b5d-e6db1daa2f72 | Grimes v. Liberty Nat. Life Ins. Co. | 514 So. 2d 965 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 965 (1987)
Barbara GRIMES
v.
LIBERTY NATIONAL LIFE INSURANCE COMPANY, et al.
85-1443.
Supreme Court of Alabama.
September 25, 1987.
Patrick M. Sigler and Stephen C. Moore, Mobile, for appellant.
Joseph C. Sullivan, Sr., Joseph C. Sullivan, Jr., and David A. Boyett III of Hamilton, Butler, Riddick, Tarlton & Sullivan, Mobile, for appellees Liberty Nat. Life Ins. Co. and Robert E. Henderson.
Leon G. Duke and Frank G. Taylor of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellee Jack Balsli.
*966 ADAMS, Justice.
This is an appeal by Barbara Grimes from summary judgments in favor of defendants Jack Balsli and Liberty National Life Insurance Company ("Liberty National"), and from a dismissal of the complaint against defendant Robert E. Henderson.
On March 1, 1983, plaintiff's husband, Roy D. Grimes, purchased a $15,000.00 life insurance policy from agent Balsli of Liberty National, which named the appellant as the sole beneficiary. On August 30, 1983, Mr. and Mrs. Grimes were notified by Liberty National that the policy had been cancelled because of non-payment of premiums. Grimes contends that four consecutive payments of $60.23 had been remitted at the time she and her husband received the cancellation notice and that she contacted Balsli for an explanation of the cancellation. Grimes claims that Balsli admitted that he had failed to remit the policy premiums to Liberty National, offered to refund the premiums, and then agreed to have the policy reinstated when appellant refused his offer of a refund.
Grimes alleges that, in conversations with Robert Henderson, manager of Liberty National's Mobile Central District Office, she was assured that the insurance policy covering Mr. Grimes was effective and that she had no cause for worry. Following her husband's death, December 16, 1984, appellant claims that she was told by Henderson that the policy on Mr. Grimes's life was not in effect and that she could not expect payment from Liberty National. Grimes's demand on Henderson and Liberty National to honor the policy was unsuccessful. She then wrote to the attorney retained by Balsli and asked for a payment of $120.46 from Liberty National as a refund of premiums paid and $200.00 from Balsli. Grimes received and negotiated checks in the amounts she requested and, on May 24, 1985, she executed the following release:
Henderson argues that he notified the Grimeses in February 1984 that the policy on Mr. Grimes's life had lapsed and that the Grimeses refused his offer to reinstate it. Balsli alleges that the only relevant facts are those pertaining to the signing of the release and that he neither agrees nor disagrees with the facts as stated by Grimes.
Grimes filed suit against Balsli, Henderson, and Liberty National on July 23, 1985, alleging breach of contract, negligence, bad faith failure to pay a claim, outrage, fraud, and deceit. Following argument on defendants' motions to dismiss, Grimes was ordered to amend her complaint. On April 15, 1986, Henderson and Liberty National filed motions to dismiss Grimes's amended complaint and Balsli filed a motion for summary judgment. Grimes filed an affidavit in opposition to the motions, which were argued before Judge Telfair Mashburn on August 1, 1986.
The court held that Grimes could not maintain joint actions for fraud, misrepresentation, and deceit against both Liberty National and Henderson, and dismissed the complaint as it pertained to Henderson. Summary judgment was granted in favor of Balsli on the grounds that Grimes had released him. The court then concluded that because neither agent Balsli nor agent Henderson remained as parties to the suit, Grimes could not proceed against the principal, and entered summary judgment on behalf of Liberty National. Grimes filed this appeal on September 3, 1986.
Grimes argues that she "was under extreme emotional and physical duress due to the recent death of her husband" at the time she executed the release. She also contends that the release was ambiguous, unconscionable, and lacked sufficient consideration. We disagree.
The written release was executed by appellant on May 24, 1985, more than five months after Mr. Grimes's death. Although Grimes may have been under great stress at the time she signed the release, there is no evidence to indicate that Balsli or his attorney subjected her to improper *967 pressure or coerced her cooperation in an effort to secure a release. See Head v. Gadsden Civil Service Board, 389 So. 2d 516 (Ala.Civ.App.1980). There is no evidence from which we could conclude that duress was a factor in Grimes's release of Balsli.
In Miles v. Barrett, 223 Ala. 293, 134 So. 661 (1931), this Court held the following language in a release to be unambiguous:
223 Ala. at 293, 134 So. at 661. In Finley v. Liberty Mutual Insurance Co., 456 So. 2d 1065 (Ala.1984), we held that language that released the defendants from "any and all claims arising out of or in any way connected with the above-described accident" was not ambiguous. Similarly, the release of agent Balsli from "any and all claims pertaining to the cancellation of our policy" cannot be said to be ambiguous.
Grimes contends that the release of agent Balsli was not supported by sufficient consideration. This argument lacks merit. As we noted in Marcrum v. Embry, 291 Ala. 400, 282 So. 2d 49 (1973):
291 Ala. at 406, 282 So. 2d at 54; as quoted in Finley, supra, at 1068. We have also held that Ala.Code (1975), § 12-21-109, is to be construed in pari materia with § 8-1-23. Section 8-1-23 provides:
See National Life & Accident Ins. Co. v. Karasek, 240 Ala. 660, 200 So. 873 (1941); Homewood Dairy Products Co. v. Robinson, 254 Ala. 197, 48 So. 2d 28 (1950); Mitchell v. Cobb, 270 Ala. 346, 118 So. 2d 918 (1960).
Appellant's contention that the release is "unconscionable on its face" because Balsli was released "for fraud involving a $15,000.00 life insurance policy in return for a token payment of $200.00" ignores statute and case law regarding consideration and a written release. Grimes demanded and received $200.00 from Balsli and $120.46 from Liberty National. We find no grounds for appellant's argument that the release is unconscionable.
Henderson and Liberty National argue that the release of Balsli also released them, and, therefore, that summary judgment was proper. We disagree. Even though the release effectively removed Balsli from "any and all claims pertaining to the cancellation" of Mr. Grimes's life insurance policy, the release neither named Henderson or Liberty National nor included any reference to the release of any other parties. Contrary to appellant's contention, Baker v. Ball, 473 So. 2d 1031 (Ala. 1985), is distinguishable from the present case. In Baker, the release at issue specifically released the named parties and "any and all other persons, firms, corporations and parties whatever, jointly and severally, of and from any and all judgments, claims, demands, actions, causes of action, suits, costs, damages, expenses, compensation and liabilities of every kind." Id. at 1034. No such language is included in the release executed by Grimes; it refers only to Balsli.
In American Pioneer Life Ins. Co. v. Sandlin, 470 So. 2d 657 (Ala.1985), Justice Almon cited § 12-21-109, to-wit:
He noted also that this Court has previously recognized circumstances in which a release, prior settlement, judgment against or satisfaction of judgment by one joint tortfeasor has or has not released another joint tortfeasor. Steenhuis v. Holland, 217 Ala. 105, 115 So. 2 (1927). In Steenhuis, this Court held:
". . . .
". . . .
Id., 217 Ala. at 107-08, 115 So. at 3-4 (citations omitted), as cited in 470 So. 2d at 661.
Because, as both appellant and appellees concede, the trial court erroneously considered Grimes's affidavit in ruling on Henderson's motion to dismiss, the motion, in effect, became a motion for summary judgment and must be reviewed according to the scintilla of evidence standard. That standard of review provides that summary judgment is not appropriate if there exists a scintilla of evidence in support of the position of the nonmoving party. In this instance, Liberty National and Henderson had the burden of showing that no genuine issue of material fact existed. Having concluded, however, that the release of Balsli did not release either Henderson or Liberty National, we hold that summary judgment should not have been granted for either of them on that basis.
Henderson argues further that even if the release were found to be inapplicable to him, and, assuming arguendo, that the life insurance contract on Mr. Grimes had been in effect at the time of his death, he (Henderson) was not liable because he acted only as the agent of a disclosed principal. Again, we disagree.
In Dillon v. AFBIC Development Corp., 597 F.2d 556 (5th Cir.1979), the court quoted Restatement (Second) of Agency (1958) for the general rule:
Dillon, supra, at 562. In the present case, appellant amended her complaint and alleged breach of contract, fraud, and deceit. The extent of Henderson's liability, if any, and that of Liberty National are questions for the trier of fact.
The release executed by Grimes released agent Balsli from "any and all claims pertaining to the cancellation of our policy." We must conclude, therefore, that the trial court did not err in granting Balsli's motion for summary judgment. The release was not effective as to Henderson and Liberty National; therefore, we hold that the court erred in dismissing Henderson and in granting summary judgment in favor of Liberty National. Grimes is entitled to present her case against them to a jury.
The judgment of the Circuit Court of Mobile County is, therefore, affirmed in part and reversed in part, and the cause is remanded for a trial on the merits.
*969 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
JONES, ALMON, BEATTY and STEAGALL, JJ., concur. | September 25, 1987 |
54a437db-3d2e-45d8-adfc-f51e1b4ad9a0 | Ex Parte Shamrock Food Service, Inc. | 514 So. 2d 921 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 921 (1987)
Ex parte SHAMROCK FOOD SERVICE, INC.
(In re BIRMINGHAM-SOUTHERN COLLEGE v. SHAMROCK FOOD SERVICE, INC.)
86-1018.
Supreme Court of Alabama.
September 11, 1987.
Harold A. Bowron, Jr., and T. Dwight Sloan of Balch & Bingham, Birmingham, for petitioner.
J. Fred Wood, Jr., and Terry McElheny of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for respondent.
PER CURIAM.
This petition for mandamus involves the question of whether a dispute over the termination of a food service agreement between Shamrock Food Service and Birmingham-Southern College is within the scope of the agreement's arbitration clause.
The arbitration clause at issue reads as follows:
The food services contract and arbitration clause are in writing and involve transactions in interstate commerce; therefore, the provisions of the Federal Arbitration Act are applicable. 9 U.S.C. §§ 1 et seq. In Shearson/American Express, Inc. v. McMahon, ___ U.S. ___, 107 S. Ct. 2332, at 2337 96 L. Ed. 2d 185 (1987) (decided June 8, 1987, after the trial court had entered an order denying arbitration in this case), the Court announced a strong federal policy favoring arbitration:
See also Ex Parte McKinney, 515 So. 2d 693 (Ala.1987).
In the case at bar, the plaintiff contends that both parties agreed to terminate the contract prior to the end of its five-year term, but that after the plaintiff had acted in reliance on the agreement to terminate, the defendant changed its mind and sought to enforce the contract. The defendant, however, contends that there was no agreement to terminate the contract.
Section 8.1 of the food services contract states that the agreement may be terminated by either party at the end of its five-year term or at any time thereafter, by giving 90 days' prior written notice. The plaintiff contends that because the contract specifically addresses only the termination of the contract at the end of its term, their alleged bilateral agreement to terminate the contract prior to the end of its term is outside the scope of the arbitration clause. We disagree.
Clearly, under the broad provisions of the arbitration clause, the issue of whether the contract has been terminated must be submitted to arbitration. See Houston General Insurance Co. v. Realex Group, N. V., 776 F.2d 514 (5th Cir.1985); and Aaacon Auto Transport, Inc. v. Barnes, 603 F. Supp. 1347 (S.D.N.Y.1985). This dispute arose with regard to the food services contract and the relative rights and obligations of the parties thereunder. However, even if we entertained doubts concerning the scope of arbitrable issues in this case, as a matter of law, our doubts would have to be resolved in favor of arbitration. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983); Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc. 494 So. 2d 1 (Ala.1986).
Accordingly, the trial court was in error in holding that the matter of the termination of the food services contract is not an arbitrable issue under this particular arbitration clause.
WRIT GRANTED.
TORBERT, C.J., and JONES, SHORES, ADAMS and HOUSTON, JJ., concur. | September 11, 1987 |
6039d307-6d39-4c88-a2e5-e8d4c9389f29 | Ex Parte Oliver | 518 So. 2d 705 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 705 (1987)
Ex parte Beverly OLIVER.
(Re Beverly Oliver v. State of Alabama).
86-535.
Supreme Court of Alabama.
September 25, 1987.
Rehearing Denied November 6, 1987.
Raymond Johnson, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted this petition for writ of certiorari to determine whether issuing a worthless check, a violation of § 13A-9-13.1, Code of Alabama 1975, is a lesser included offense of theft by deception, § 13A-8-2(2), Code of Alabama 1975. The trial court refused to charge the jury on § 13A-9-13.1. We reverse and remand.
The case involves the following facts: Cathryn Mook advertised a man's ring for sale, and on January 2, 1984, she received a call from Beverly Oliver regarding the advertisement. Oliver inquired about the ring and requested directions to Mrs. Mook's house. Mrs. Mook agreed to sell Oliver the man's ring and two other pieces of jewelry (a lady's diamond ring and a diamond bracelet) for $7,250. Oliver paid for the jewelry by writing a check, which was drawn on First Alabama Bank and was made out to Mrs. Mook. The check was drawn on a closed account, and Oliver knew that the account was closed when she wrote the check.
Beverly Oliver was later indicted by the Montgomery County Grand Jury for theft by deception, § 13A-8-2(2), Code of Alabama 1975. During the trial, Oliver filed a written motion requesting the trial court to charge the jury on the offense of issuing a worthless check, an offense under § 13A-9-13.1, alleging that it was a lesser included offense under theft by deception. The trial court denied this motion. The trial court also refused to give two written *706 requested charges covering § 13A-9-13.1. Oliver's attorney duly objected to the trial court's refusal to give these charges. Oliver was thereafter convicted of theft by deception and was sentenced to 10 years' imprisonment. Oliver appealed to the Court of Criminal Appeals, which affirmed the judgment without an opinion, 502 So. 2d 404. Oliver then filed a petition for writ of certiorari here.
We hold that the trial court erred when it refused to charge the jury on issuing a worthless check in violation of § 13A-9-13.1, as a lesser included offense of theft by deception, under § 13A-8-2(2).
Section 13A-1-9, Code of Alabama 1975, sets forth the criteria for determining what is a lesser included offense. It provides as follows:
A defendant is entitled to a charge on a lesser included offense if there is any reasonable theory from the evidence that would support the position. Chavers v. State, 361 So. 2d 1106 (Ala.1978); Fulghum v. State, 291 Ala. 71, 277 So. 2d 886 (1973); and Williams v. State, 474 So. 2d 178 (Ala. Crim.App.1985).
In this case, Oliver was indicted and convicted of theft by deception under § 13A-8-2(2), Code of Alabama 1975, which states:
"A person commits the crime of theft of property if he:
"* * *
To make out a case of theft by deception, the state must prove three elements: (1) that the defendant knowingly obtained the property; (2) that the defendant obtained the property by deception; and (3) that the defendant intended to deprive the owner of the property. Loper v. State, 469 So. 2d 707 (Ala.Cr.App.1985). Deception occurs when a person knowingly "promises performance which the defendant does not intend to perform or knows will not be performed." Code of Alabama 1975, § 13A-8-1(1)(f); Andersen v. State, 418 So. 2d 967 (Ala.Crim.App.1982).
Code of Alabama 1975, § 13A-9-13.1, sets forth the elements of the crime of issuing a worthless check, as follows:
In order for a person to be convicted under this statute, it must be shown that the person negotiated or delivered a negotiable instrument in return for a thing of value with the intent, knowledge, or expectation that the negotiable instrument would not be honored by the drawee. Huguley v. City of Demopolis, 456 So. 2d 879 (Ala. Crim.App.1984). This statute was drafted as a means of "supplementing the ordinary laws of theft and false pretenses in the context of bad checks." Willis v. State, 480 So. 2d 56, 58 (Ala.Crim.App.1985).
Section 13A-1-9(a)(1) provides that a defendant may be convicted of an offense included in an offense charged, and issuing a worthless check is an included offense if it is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged, here, theft. In this case, the issuance of a worthless check can be established by the same facts as the charged offense of theft by deception. The only fact that is necessary to prove theft by deception that is not required for proving the issuance of a worthless check is the element of deception.
In this case, the facts established at trial were that Oliver wrote or issued a check for the jewelry, knowing that the check was drawn on a closed account and that it would not be honored. She then took possession of the jewelry. This evidence would support a conviction of theft by deception or a conviction of issuing a worthless check. This meets the requirement of § 13A-1-9(b) that there be a rational basis for a verdict of guilty of the lesser included offense; therefore, we believe that the trial court erred when it refused to charge the jury on the offense of issuing a worthless check pursuant to § 13A-9-13.1, Code of Alabama 1975.
The judgment of the Court of Criminal Appeals is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
JONES, ALMON, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur.
TORBERT, C.J., and STEAGALL, J., not sitting. | September 25, 1987 |
e46b8b0b-906a-4867-beeb-92ece40dcbe0 | Montz v. Mead & Charles, Inc. | 557 So. 2d 1 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1 (1987)
Charles MONTZ
v.
MEAD & CHARLES, INC., et al.
85-1345.
Supreme Court of Alabama.
October 2, 1987.
Jack W. Meigs of Hellums & Meigs, Centreville, for appellant.
Michael S. Jackson of Melton & Espy, Montgomery, for appellee Mead & Charles, Inc.
James W. Garrett, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees The Gulf Agency, Inc. and Thomas K. Albrecht.
HOUSTON, Justice.
The original opinion in this case is withdrawn and the following substituted therefor:
Charles Montz filed this action in the Circuit Court of Perry County against Sovereign Marine and General Insurance Company, Ltd. (Sovereign Marine), Gulf Agency, Thomas Albrecht (president of Gulf Agency), and Mead & Charles, Inc., in tort and contract for the wrongful cancellation of his insurance contract. The trial court initially granted the defendants' motion for summary judgment on the tort/punitive damages aspect, and that is not before us. Montz's complaint was amended to allege that Mead & Charles fraudulently retained his insurance premium after the purported cancellation of his policy. The trial court subsequently granted summary judgment for Gulf Agency, Albrecht, and Mead & *2 Charles on the contract claim and granted Mead & Charles's motion to dismiss Montz's amended complaint. The contract claim against Sovereign Marine is pending in the trial court. The above judgments were made final pursuant to Rule 54(b), Ala.R.Civ.P. Montz appealed.
Montz purchased a truck from a Birmingham, Alabama, dealer. An employee of this dealer arranged for Montz to procure insurance on this truck through defendant Mead & Charles. Montz paid Mead & Charles the first year's premium and in return Mead & Charles issued Montz a binder effective July 13, 1983. Mead & Charles, as broker for defendant Gulf Agency, contacted Gulf Agency and requested that it secure coverage for the binder. Gulf Agency, as "qualified general managing agent" for Sovereign Marine, secured coverage for Montz's vehicle through the defendant insurer, Sovereign Marine. Shortly thereafter, a policy was issued to Montz. Montz has no record of it and does not recall receiving that policy. In November 1983, the insurer Sovereign Marine, through Gulf Agency, mailed a notice of cancellation to Montz because it had not received the necessary underwriting information. Montz does not recall receiving this notice. Approximately two and onehalf months after the policy was purportedly cancelled, the truck, which is the subject of the insurance contract here in question, sustained collision damage. Montz notified Mead & Charles of this accident. He was informed that his coverage had been cancelled for failure to provide Gulf Agency or Sovereign Marine with his date of birth and driver's license number, and that he should contact Gulf Agency. About two and onehalf months after the purported cancellation and approximately two weeks after the loss, Mead & Charles refunded Montz's premium. Both Mead & Charles and Gulf Agency denied coverage on the basis that no contract existed between them and Montz. Montz filed this action.
Missildine v. Avondale Mills, Inc., 415 So. 2d 1040, 1041 (Ala.1981).
Appellant raises the following issue:
Montz contends that the trial court erred in granting summary judgment in favor of Mead & Charles on the contract claim on the basis that no contract was in force between them at the time of loss. Montz argues that a question of fact existed as to whether the binder issued by Mead & Charles had expired at the time of the loss. Montz maintains, because he did not receive a copy of the policy purportedly issued by Sovereign Marine, that the binder issued by Mead & Charles was still in effect at the time of the loss. Montz also maintains that he never received a notice cancelling the binder and therefore argues that Mead & Charles breached its contract by denying him coverage under the binder.
*3 The document issued to Montz[1] by Mead & Charles and clearly labelled a "binder" is as follows:
We note that this "binder" contains language and certain ambiguities that we believe may distinguish it from the typical binder issued in the normal course of business in the insurance industry. First of all, a binder was traditionally considered to be "[a] written memorandum of the important terms of contract of insurance which gives temporary protection to insured pending investigation of risk by insurance company or until formal policy is issued." Black's Law Dictionary 153 (5th ed. 1979) (citing Turner v. Worth Insurance Co., 106 Ariz. 132, 472 P.2d 1 (1970)) (emphasis added). The binder in the instant case, however, expires "upon receipt of the policy," not upon its "issuance," and we also note that no specific insurance company or underwriter appears to be bound by this particular "binder," although the facts are unclear on this point at this stage of the proceedings. True, the binder purports to bind "Lloyd's of London." However, it is our understanding that Lloyd's is not itself an underwriter, but rather is an "association of persons who underwrite risks as individuals." W. Freedman, Richards on the Law of Insurance ß 11, at 40 (5th ed. 1952). "Though there is a Corporation of Lloyd's ..., it does no underwriting. Rather, it is an organization that regulates the operations of the underwriters and provides various services, including the gathering and publication of data useful to the underwriters...." R. Keeton, Basic Text on Insurance Law 20 (1971). Consequently, on the current state of the record, we cannot delineate with certainty all the legal obligations that are entailed by this document. We do think it clear, however, that this "binder" presents a scintilla of evidence that Mead & Charles contracted with Montz to provide a year's worth of insurance with some insurer, and, if there is a scintilla of evidence that Mead & Charles's obligations in this regard had not been cancelled at the time of the loss, Montz has sufficiently alleged the existence of a contract to defeat the motion for a summary judgment by Mead & Charles.
In regard to this latter issue, we find that there is at least a scintilla of evidence that Mead & Charles was still under a contractual obligation to provide insurance from an insurer at the time of the loss. As noted above, the binder expires "upon receipt of the policy." It also provides: "Coverage considered bound pending completion/receipt of policy and/or endorsement." There is no evidence in the record that Gulf Agency, Mead & Charles, or Sovereign Marine mailed the policy to Montz or otherwise delivered it to him before the accident occurred. Montz denies having received the policy. There is evidence that a notice of cancellation of the policy was mailed to Montz prior to the accident; however, there was no evidence that a cancellation *4 of the binder was delivered to Montz before the accident.[2] The binder shows that the coverage was to expire July 13, 1984. The collision loss occurred before that date.
Accordingly, the issue of whether Mead & Charles served as Montz's agent to provide insurance coverage and inexcusably failed to do so should not be taken from the jury on the basis that no contract was in force at the time of the loss. The "binder" presents a scintilla of evidence that such a contract was indeed in force, especially when considered in conjunction with the fact that Mead & Charles had also retained Montz's premium payment well past the time of the purported cancellation and approximately two weeks after the time of loss.
Likewise, we think that one of Montz's specific grounds for his contract claim should not have been disposed of on this motion for a summary judgment. Montz contends that Mead & Charles served as his agent to procure insurance coverage and that, as his agent, Mead & Charles had both a contractual and a fiduciary duty to provide the necessary underwriting information, e.g., his date of birth and driver's license number, to Gulf Agency or Sovereign Marine. Montz argues that Mead & Charles breached its contractual duty by failing to provide the necessary information to Gulf Agency or Sovereign Marine and that this resulted in the cancellation of his policy. Seeberg v. Norville, 204 Ala. 20, 85 So. 505 (1920).
At the least, a disputed factual situation was presented as to whether Montz was requested to provide additional information to Mead & Charles. Two letters addressed to Montz, which requested this information, were made exhibits to Montz's deposition. Montz denied receiving these letters, and there is no evidence in the record that these letters were mailed or otherwise delivered to Montz prior to his collision loss.
In Highlands Underwriters Ins. Co. v. ElegantÈ Inns, Inc., 361 So. 2d 1060 (Ala. 1978), we wrote:
361 So. 2d at 1065.
We cannot say that Montz cannot recover on his contract claim against Mead & Charles. With the present state of the record, we cannot say that there is no genuine issue as to any material fact as to *5 this contract claim. Rule 56, A.R.Civ.P. Therefore, the trial court erred in granting summary judgment in favor of Mead & Charles.
Appellant raises this additional issue:
It is undisputed that Sovereign Marine, through Gulf Agency, issued an insurance policy to Montz that was effective July 13, 1983. As previously stated, there is no evidence that Montz received this policy. However, it is undisputed that a notice of cancellation was mailed to Montz by Gulf Agency.
In Currie v. Great Central Insurance Co., 374 So. 2d 1330, 1332 (Ala.1979), we held:
The face of the notice of cancellation shows that the notice was stamped as mailed through the United States Postal Service in Montgomery, Alabama, and that the notice was properly addressed to Montz. Montz's statement that he does not recall receiving the notice, without more, does not overcome the presumption that he received it. Currie, supra. Therefore, there being no evidence that Gulf Agency wrongfully cancelled the contract, Montz's contract action against Gulf Agency must fail.
Montz also argues that Gulf Agency is liable in contract because it failed to comply with certain duties imposed upon it as a "surplus line broker." ß 27-10-27, Code 1975. However, it appears to us from the record that this argument has been raised for the first time on appeal; therefore, this issue is not properly before us. Chatman v. City of Prichard, 431 So. 2d 532 (Ala. 1983). The trial court did not err in granting summary judgment in favor of Gulf Agency and Albrecht on the contract claim.
The appellant's third issue is:
That amended complaint alleges, in pertinent part, as follows:
The trial court dismissed the amended complaint for failure to state a claim upon which relief may be granted, based upon its prior entry of summary judgment in favor of the defendants on the question of "punitive damages/tort action" for the wrongful cancellation of insurance coverage. See Watkins v. Life Ins. Co. of Georgia, 456 So. 2d 259 (Ala.1984).
The appropriate standard of review is whether, when the allegations of the complaint are viewed most strongly in his favor, the pleader could prove any set of circumstances which would entitle him to relief. Mull v. String, 448 So. 2d 952 (Ala. 1984); Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d 640 (Ala. 1985). A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief. Rule 12(b)(6), A.R.Civ.P.; Roberts v. Meeks, 397 So. 2d 111 (Ala.1981).
The undisputed facts pertinent to the issue raised in Montz's amended complaint are that Montz paid his annual premium to Mead & Charles; that Sovereign Marine, through Gulf Agency, issued Montz a contract of insurance effective from July 13, 1983, through July 13, 1984: that Gulf Agency cancelled this policy effective December 11, 1983; that Montz's vehicle, which was the subject of the insurance contract between Sovereign Marine and Montz, was damaged on February 14, 1984, and the damage was then reported to Mead & Charles; that Montz was subsequently informed that his policy had been cancelled; that Montz requested a copy of his policy and was furnished a duplicate copy of it; that Mead & Charles, by the letter dated February 27, 1984, returned his premium (about two and one-half months after the purported cancellation of his policy); and that Gulf Agency "expediently" returned the unearned premium to Mead & Charles following the cancellation of Montz's policy in December 1983.
Given the above facts, and construing all of Montz's allegations in the light most favorable to him, and resolving all doubts in his favor, we cannot say that this plaintiff could not prove a set of facts that would entitle him to relief under his amended complaint. See Trans-America Ins. Co. v. Wilson, 262 Ala. 532, 80 So. 2d 253 (1955); Voss v. American Mut. Liability Ins. Co., 341 S.W.2d 270 (Mo.App.1960). Therefore, the trial court should not have granted the motion to dismiss.
The summary judgment granted in favor of Gulf Agency and Albrecht is affirmed; however, the summary judgment granted in favor of Mead & Charles on Montz's contract claims and the dismissal of the amended complaint are reversed; and the cause is remanded for further proceedings.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur.
[1] It is unclear from the record whether the binder was actually "issued" to Montz, because Montz stated in a deposition that he could not recall receiving it. We do not think, however, that Montz's possible failure to receive this document defeats its value as evidence of the contractual relationship between Mead & Charles and Montz. The binder may be viewed as a written memorandum of Mead & Charles's acceptance of Montz's offer, and consequently we view the binder as acceptable documentary evidence pertaining to the terms of their agreement, regardless of whether Montz received the writing.
[2] We hold later in this opinion that Montz's receipt of notice of cancellation of a policy purportedly issued to him may be presumed under the facts of this case. There is no inconsistency between this holding and our holding above that the current state of the record does not show that the binder had been cancelled. As noted above, we view the binder as presenting at least a scintilla of evidence that insurance coverage for one year would be provided to Montz from some insurer, the obligation to remain in effect until receipt of a policy. We are unwilling to narrowly construe the obligations inhering in the binder at this stage of the proceedings and also presume that notice of cancellation of an issued (but not received) policy also satisfies the binder's express term that it remained in force until a policy was delivered to or received by Montz. Under the express terms of the binder, there is a scintilla of evidence that Mead & Charles contracted to provide insurance from an insurer for one year and that that obligation remained in effect until the policy was actually delivered to Montz. | October 2, 1987 |
99d7dfbd-ab7f-490d-8f1d-eb07a9df265d | Timmerman v. Fitts | 514 So. 2d 907 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 907 (1987)
Judy TIMMERMAN
v.
Floyd O. FITTS, et al.
86-318.
Supreme Court of Alabama.
September 11, 1987.
*908 Shay Samples of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.
Robert B. Harwood, Jr., of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellees.
SHORES, Justice.
This is a medical malpractice case. The issue before us on appeal is whether the trial court erred in directing verdicts in favor of the defendants. We reverse.
The underlying facts in this case are virtually undisputed. On February 6, 1984, Richard W. Stuhr, M.D., performed a bilateral subtotal thyroidectomy on the plaintiff, Judy Timmerman.[1] The surgery involved making a half-moon incision in the front of Ms. Timmerman's neck just above the collar line. As part of the closing *909 procedure, Dr. Stuhr embedded and exited two small plastic drain tubes to evacuate the blood and serous material that normally accumulate in a surgical site. The drain tubes exited each pole of the incision and connected to a larger tube with a suction vacuum. The drain tubes, which were smaller than a pencil, formed a Y-shaped configuration.
On February 8, 1984, Floyd O. Fitts, M.D., while making rounds at the hospital, first examined Ms. Timmerman. On this occasion, Dr. Fitts determined that Ms. Timmerman's healing had progressed far enough that it was appropriate to remove the drain tubes. As Dr. Fitts attempted to remove the drain tubes, he encountered some initial resistance, which could have been caused by a stitch or some tissue being caught in the tubing. However, Dr. Fitts continued pulling on the tubing and succeeded in removing only a portion of the drain tube from inside Ms. Timmerman's neck.
At that time Dr. Fitts observed that one side of the removed tubing was shorter than the other. Ms. Timmerman was not informed that there might be a problem with regard to the tubing, and no X-rays or diagnostic studies were utilized to determine whether a portion of the tubing remained inside the wound.
On February 9, 1984, Dr. Stuhr examined Ms. Timmerman, determined that she was doing well, and discharged her from the hospital. Three or four days later, she began having difficulty swallowing, and when she tried to swallow water or liquid it came out of her nose and she would get strangled. When she turned her head she experienced pain in the neck area where the surgery occurred. Ms. Timmerman testified that it felt as if something were sticking in her neck and as if something were pulling. Additionally, she testified that she could feel a ridge across her throat.
Ms. Timmerman told Dr. Stuhr of the trouble she was having and asked him about the ridge across her throat. This occurred on February 14, 1986, during her first post-hospitalization office visit. Dr. Stuhr told her that the ridge represented scar tissue and that it would go away if she would massage it.
Ms. Timmerman's next office visit with Dr. Stuhr was on February 27, 1984. On this occasion she asked about the ridge again, and even asked if a tube had been left in her throat for any reason. Dr. Stuhr assured her that there was no tube in her throat and that the ridge represented scar tissue that would never go away if it were not massaged.
Pursuant to this advice, Ms. Timmerman massaged the area and the next morning the upper portion of her face was swollen. Her hands and feet became swollen and she returned to Dr. Stuhr's office on March 5, 1984. At this time Dr. Stuhr considered the pattern of swelling to be common for a person who is retaining fluids and referred Ms. Timmerman to her regular physician, Hayse Boyd, M.D.
Dr. Boyd examined Ms. Timmerman on March 22, 1984, and noted a firm, curvilinear-shaped area above her thyroid surgery scar. He had X-rays taken of her neck and they revealed that a portion of the drain tube remained inside Ms. Timmerman's neck. Dr. Boyd informed her that the tube would have to be removed, and he referred her back to Dr. Fitts.
Ms. Timmerman returned to Dr. Fitts's office on March 27, 1984, at which time Dr. Fitts attempted to remove the drainage tube, using an office procedure. However, she experienced excruciating pain, and was transferred to the hospital with a portion of the tube hanging out of her neck. At the hospital, Dr. Fitts performed an operative procedure, which required anesthesia, to remove the remainder of the drain tube. The tube was approximately 6½ to 7 inches long, and this time X-rays were taken to make sure no tubing remained in her neck.
On February 4, 1986, Ms. Timmerman filed suit against Dr. Fitts and Dr. Stuhr, individually and as agents of Surgical Associates of Tuscaloosa, P.A. A directed verdict was entered in favor of Dr. Stuhr at the close of the plaintiff's case, and at the end of all the testimony, a directed verdict *910 was entered in favor of Dr. Fitts and Surgical Associates.
The issue before us on appeal is whether the trial court properly entered directed verdicts in favor of the defendants on the ground that there was no expert testimony offered by the plaintiff, other than that of the defendant doctors themselves, regarding the appropriate standard of care and the alleged breach of the duty to use due care.
A directed verdict is proper only where there is a complete absence of proof on an issue material to the claim or where there are no disputed questions of fact on which reasonable people could differ. Worley v. City of Huntsville, 452 So. 2d 867 (Ala.Civ.App.1984). On a motion for a directed verdict in a jury trial, the judge may grant the motion only if, without weighing the credibility of the evidence, there is but one reasonable conclusion from the evidence and the law, and that conclusion is that the non-moving party has not presented a prima facie case. Feaster v. American Liberty Ins. Co., 410 So. 2d 399 (Ala.1982). When a directed verdict is requested, the entire evidence must be viewed in a light most favorable to the opposing party, and it should be refused where reasonable inferences may be drawn from the evidence unfavorable to the party requesting it or where there is a conflict in any material matter at issue. Baker v. Chastain, 389 So. 2d 932 (Ala.1980). A clear statement of the test is found in Herston v. Whitesell, 374 So. 2d 267 (Ala. 1979):
Therefore, we will review the evidence in a light most favorable to Ms. Timmerman and determine whether a reasonable inference in support of her claims may be drawn from the evidence.
The plaintiff's theory of recovery against Dr. Stuhr was, in essence, that he negligently failed to diagnose the presence of the tubing in her neck, and hence failed to promptly remove the tube.
Pursuant to Rule 43(b), Ala.R.Civ.P., Dr. Stuhr was called as an adverse witness by the plaintiff. Dr. Stuhr was questioned about the applicable standard of care relative to acceptable and proper post-operative follow-up of a patient having undergone a thyroidectomy. In this regard he testified as follows:
This testimony clearly establishes the appropriate standard of care regarding post-operative procedures and examinations. During the follow-up visits, Dr. Stuhr was under a duty to determine any post-operative problems, listen to the patient's complaints, and investigate these complaints by either physical examination or diagnostic studies. In addition, Dr. Stuhr was under a duty to feel the area and take X-rays of any suspicious physical findings. Dr. Stuhr testified that upon listening to Ms. Timmerman's complaints, he palpated the area of the incision and was of the opinion that the ridge in Ms. Timmerman's neck was a surgical flap line, and that the ridge would go away if it were massaged.
However, when Dr. Boyd examined her throat on March 22, 1984, he felt a foreign object in her throat and ordered a standard X-ray, which showed the drain tube in her throat. The hospital records, as recorded by Dr. Fitts, indicate that there was a palpable defect in the neck area, which was a palpable drain. Furthermore, Dr. Stuhr admitted that the tube was located right under the surface of the skin, just above the thyroid scar, and that it stayed in the same location from the time it was inserted in Ms. Timmerman's neck until the time it was removed.
As stated in Gilbert v. Campbell, 440 So. 2d 1048 (Ala.1983), the general rule in Alabama is that expert medical testimony is required to establish what is and what is not proper medical treatment and procedure. An exception to this general rule exists where an understanding of the doctor's alleged lack of due care or skill requires only common knowledge or experience. Powell v. Mullins, 479 So. 2d 1119 (Ala.1985).
Only in extreme cases will the jury be permitted to find professional misconduct, resulting in injury within the doctor-patient relationship, absent expert testimony as to the standard of care that the doctor is alleged to have breached. Tant v. Women's Clinic, 382 So. 2d 1120 (Ala.1980). In the present case, the facts indicate that only common knowledge or experience is required to understand the doctor's alleged lack of due care or skill. Dr. Stuhr admitted the tube was located above the scar just under the skin and that the tube remained in the same place from the time it was inserted until the time it was removed. Dr. Boyd was able to palpate the tube, and recognized that an X-ray should be taken to confirm his finding of a foreign object in Ms. Timmerman's neck. Additionally, Ms. Timmerman suspected that the tube was in her neck and she specifically asked Dr. Stuhr if this was a possibility. This testimony was sufficient evidence to allow the jury to determine that Dr. Stuhr's diagnosis that the ridge was scar tissue, rather than the drain tube, was a negligent diagnosis or a breach of his duty as a physician.
We find that the plaintiff's failure to provide expert testimony regarding Dr. Stuhr's diagnosis of the ridge as scar tissue, rather than as the drain tube, was not a fatal defect preventing the plaintiff from establishing a prima facie case, and the trial court erroneously entered a directed verdict in favor of Dr. Stuhr.
The plaintiff's theory of recovery against Dr. Fitts was that he breached the standard *912 of care by failing to remove the entire drain tube from Ms. Timmerman's neck. Dr. Fitts would have us affirm the directed verdict in his favor on the authority of Gilbert, supra, which was a medical malpractice case involving a drain tube left inside a patient. In Gilbert, a directed verdict was entered in favor of the defendant doctor on the ground that there was no evidence that the doctor's conduct fell below the standard of care. Although the present case and Gilbert each involved a drain tube left inside a patient, there are several facts that distinguish the two cases. First, in Gilbert, the doctor had no knowledge of the presence of the drain, it failed to show up on X-rays, and it was not capable of being seen upon external examination. In the present case, Dr. Fitts had actual knowledge of the drain, it was readily visible on an X-ray, and it was capable of being felt upon external examination.
Expert medical testimony is required to describe the proper use, purpose, insertion, and removal of a drain. Gilbert, supra. While Dr. Stuhr was on the stand, he testified as follows regarding the proper use, purpose, insertion, and removal of a drain:
". . . .
Likewise, Dr. Fitts admitted that the standard of care required the removal of the entire drain tube. This testimony clearly establishes the appropriate standard of care as to the proper use, purpose, insertion, and removal of a drainage tube. In every case such as this, the standard of *913 care is to remove one hundred percent of the drain tube.
Additionally, Dr. Stuhr testified as to the appropriate standard of care when difficulty is encountered in removing the drain tube. In this regard Dr. Stuhr testified as follows:
Dr. Fitts admitted that he encountered some initial difficulty in removing the drain tube and that one end of the drain was substantially shorter than the other end at the time he removed it. Dr. Fitts admitted that although he recognized the potential that part of the drain was left in Ms. Timmerman's neck, he did not give enough thought to order an X-ray because he did not think it was necessary. He stated that it was his opinion that an X-ray was unwarranted in light of the additional radiation risk; however, X-rays for the sole purpose of detecting any remaining drain tube were made a few weeks later and then the remaining portion of the tube was surgically removed.
After thoroughly examining the record, we find that the plaintiff properly utilized the testimony of the defendant doctors to establish the appropriate standard of care as to the proper use, purpose, insertion, and removal of a drainage tube. There is no requirement that the plaintiff produce an independent expert where the testimony of the defendant, as here, establishes the standard required of him by his profession. Furthermore, there was evidence which, if believed by the jury, would have been sufficient to support a finding that the duty to use due care in the removal of the drainage tubes had been breached. Therefore, the judgment of the trial court, insofar as it was based upon the directed verdict in favor of Dr. Fitts, is due to be reversed. Additionally, insofar as the judgment was based on the directed verdict in favor of Surgical Associates, it must be *914 reversed since it was granted on the ground that the principal could not be liable because there was no agent liability, and that ground is not viable, in light of our holdings as to the doctors.
For all of the foregoing reasons, the judgment based upon the directed verdicts in favor of Dr. Fitts, Dr. Stuhr, and Surgical Associates is reversed.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur.
[1] Subsequent to the filing of the complaint, Ms. Timmerman was married and at the trial she was known as Judy Timmerman Bell. We will continue to refer to her as Ms. Timmerman for consistency and clarity. | September 11, 1987 |
07a77451-f9a3-455b-aea8-b50c1078e7ce | Messick v. Moring | 514 So. 2d 892 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 892 (1987)
Jeffrey D. MESSICK, as administrator of the estate of Donna Messick Davis, deceased, et al.
v.
Joseph R. MORING and William D. Drane.
85-1484.
Supreme Court of Alabama.
September 11, 1987.
James L. Teague, Mobile, for appellants.
Reggie Copeland, Jr., and Forrest S. Latta of Nettles, Barker, Janecky & Copeland, Mobile, for appellees.
SHORES, Justice.
Plaintiff, Jeffrey D. Messick, as executor of the estate of Donna Messick Davis, brought a dram shop and wrongful death action against Metropolitan Restaurant and Lounge, Inc., Metropolitan Fixtures Corporation, and Metropolitan Management Corporation. Joseph Moring, M.D., and William Drane, M.D., were sued individually and as the stockholders, officers, and directors of the three corporate defendants. *893 Messick appeals from an order granting a summary judgment (made final pursuant to Rule 54(b), Ala.R.Civ.P.) relieving Moring and Drane of all personal liability on the ground that they were protected by the doctrine of limited shareholder liability. We affirm.
In 1977, Moring and Drane organized three corporations for the purpose of operating a restaurant and lounge popularly known as "The Met." Metropolitan Restaurant and Lounge, Inc., was a non-profit corporation and held the liquor license, since the establishment sold alcoholic beverages on Sunday. Metropolitan Fixtures Corporation was organized to contract with the non-profit corporation to provide the club's premises and all its fixtures. Metropolitan Management Corporation was organized to contract with the non-profit corporation to provide employees and management of the club. Moring and Drane were the directors of the non-profit corporation and the shareholders, officers, and directors of the other corporations.
The circumstances giving rise to this cause of action involve the employees of The Met allegedly serving alcoholic drinks to Peter Michael Gregor while he was visibly intoxicated on the night of August 4, 1982. In the early morning hours of August 5, 1982, while intoxicated, Gregor drove his automobile through the intersection of Old Shell Road and the East Service Road of Interstate 65 in Mobile, Alabama, and struck an automobile being driven by Donna Messick Davis, causing serious bodily injuries which resulted in her death.
Messick brought an action against those entities doing business as The Met for negligence and for violating the Dram Shop Act, Ala.Code (1975), § 6-5-71. The complaint was later amended to allege that all three corporations were the alter egos of Moring and Drane and that the corporations were used as instrumentalities for avoiding personal liability and that the doctors had failed to adhere to corporate formalities.
In order for summary judgment to be appropriate, the pleadings, affidavits, depositions, admissions, and answers to interrogatories must show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A.R.Civ.P. 56(c). Bon Secour Fisheries, Inc. v. Barrentine, 408 So. 2d 490 (Ala.1981). Where there is a scintilla of evidence in support of a cognizable theory advanced by the nonmoving party, the trial court must deny the motion for summary judgment and allow the factual questions to go to the jury. Duff v. Southern Ry., 496 So. 2d 760 (Ala.1986). The decision of when to impose personal liability on a shareholder or officer is a question of fact treated as an evidentiary matter to be determined on a case by case basis. Cohen v. Williams, 294 Ala. 417, 318 So. 2d 279 (1975).
Because this is an appeal from a summary judgment, we review the record for evidence that would yield any inference in support of Messick's claim creating a factual dispute for resolution by a jury. Therefore, we recite those facts most favorable to the argument of Messick and from which must be inferred any disputed material fact. Marks Fitzgerald Furniture Co. v. Clarklift of Alabama, Inc., 494 So. 2d 614 (Ala.1986).
On Messick's request, Moring and Drane either produced, or allowed Messick's expert to inspect, nearly 2000 pages of corporate records and exhibits. Documents such as ledgers, corporate minutes, tax returns, financial statements, and corporate books were made available for inspection by Messick.
Messick questions only two aspects of the operation of the corporations and argues that these two aspects would be sufficient evidence for a jury to impose personal liability on Moring and Drane: 1) the write-off of a 1979 loan of $112,000 to the stockholders as a bad debt, with no effort to collect; and 2) the transfer of money into a Merrill Lynch account without any documentation as to the disposition of these funds.
On May 3, 1978, Moring and Drane borrowed $100,000 from the First National Bank of Mobile in their own names; they were personally liable for this debt. In *894 1979, the Fixture corporation took an assignment of the debt and paid off the note in the doctors' individual names. The Fixture corporation's tax return for the fiscal year ending November 30, 1978, listed $11,000 in loans to stockholders. For the fiscal years ending on November 30 of 1979, 1980 and 1981, the tax returns indicated loans to stockholders in excess of $111,000.00. For the fiscal year beginning December 1, 1981 and ending November 30, 1982, the tax returns indicated a beginning "loans to stockholders" balance of $112,148.00 and an ending balance of $0.00. This loan to stockholders was written off as a bad debt for bookkeeping purposes in 1981 and for tax purposes in 1982. There is no indication that the corporation ever made any attempt to collect this debt from the stockholder doctors.
Additionally, Messick contends that thousands of dollars were diverted to a Merrill Lynch account and that Moring and Drane failed to produce records showing the disposition of these funds. Moring and Drane claim that they are no longer in possession of these records, even though the tax return for the fiscal year that ended on November 30, 1985, shows a balance of $29,022.97 in the Merrill Lynch account and this request was made just three months later in February 1986.
Under the foregoing facts, the issue before us on appeal is, assuming the allegations are true, could a jury have found the corporations to be instrumentalities or alter egos of the doctors and thereby imposed personal liability on Moring and Drane?
In Moore & Handley Hardware Co. v. Towers Hardware Co., 87 Ala. 206, 210, 6 So. 41, 43 (1889), we recognized that "a corporation is a distinct entity, to be considered separate and apart from the individuals who compose it." In certain situations the corporate entity will be disregarded and limited stockholder liability will be denied. The following factors are commonly used as justification for "piercing the corporate veil" and imposing personal liability on shareholders or imposing liability on a controlling corporation: 1) inadequacy of capital; 2) fraudulent purpose in conception or operation of the business; 3) operation of the corporation as an instrumentality or alter ego. Piercing the Corporate Veil in Alabama: In Search of a Standard, 35 Ala.L.Rev. 311 (1984).
Initially, we note that it is under the third theory that Messick contends that the corporate entity should be disregarded. Alabama law has recognized that in proper situations, when the corporate form is being used to evade personal responsibility, the corporate form will be disregarded and liability will be imposed on the person controlling the corporation and subverting it to his personal use by the conduct of its business in a manner to make it merely his instrumentality. Cohen v. Williams, 294 Ala. 417, 318 So. 2d 279 (1975). Although the limitation of personal liability is a valid corporate attribute, the corporate entity will be disregarded when it is used solely to avoid a personal liability of the owner while reserving to the owner the benefits gained through use of the corporate name. Bon Secour Fisheries, Inc. v. Barrentine, 408 So. 2d 490 (Ala.1981) (citing Woods v. Commercial Contractors, Inc., 384 So. 2d 1076 (Ala.1980)). The theory of separate corporate existence can properly be discarded, even in the absence of fraud or illegality, to prevent injustice or inequitable consequences. Cohen, supra.
In an attempt to circumvent some of the difficulties in applying conclusory terms such as "instrumentality," "alter ego" and "adjunct," we announced, in Kwick Set Components, Inc. v. Davidson Ind., Inc., 411 So. 2d 134 (Ala.1982), a standard to be applied in order to determine whether the corporate entity should be disregarded when excessive control is the ground. While acknowledging that the dominating party may be an individual or another corporation, we stated the elements essential for imposition of liability on the dominant party as follows:
1) The dominant party must have complete control and domination of the subservient corporation's finances, policy and business practices so that at the time of the attacked transaction the subservient corporation had no separate mind, will, or existence of its own;
*895 2) The control must have been misused by the dominant party. Although fraud or the violation of a statutory or other positive legal duty is misuse of control, when it is necessary to prevent injustice or inequitable circumstances, misuse of control will be presumed;
3) The misuse of this control must proximately cause the harm or unjust loss complained of.
Lowendahl v. Baltimore & O. Ry., 247 A.D. 144, 287 N.Y.S. 62 (1936).
The mere fact that a party owns a majority or all of the corporation's stock does not, of itself, destroy the corporate identity, but it is a factor to be considered in determining the control of the corporation. Kwick Set Components, supra.
Moring and Drane assert that they faithfully followed corporate formalities and that none of the corporate transactions was illegal. In support of this contention, Moring and Drane direct our attention to the fact that out of nearly 2000 pages of corporate records, Messick questions only two transactions. While it is not necessary to prove illegality in order to establish excessive control, it is essential that complete control and domination be proven. These two transactions fail to establish that Moring and Drane misused their control of the corporations.
After thoroughly reviewing the record before us on appeal, we agree with the trial court that Moring and Drane have precluded the possibility, as a matter of law, that Messick might establish his allegations. We are convinced that no genuine issues of material fact exist sufficient to raise an inference in support of Messick's claim; therefore, the trial court properly granted the motion for summary judgment, and the judgment appealed from is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | September 11, 1987 |
1a4c040b-af44-45e5-9f32-be01f32763da | Selby v. Quartrol Corp. | 514 So. 2d 1294 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1294 (1987)
Ricky Lee SELBY
v.
QUARTROL CORPORATION, et al.
85-1441.
Supreme Court of Alabama.
September 25, 1987.
Alan Lamar King of King and King, Birmingham, for appellant.
David R. Donaldson of Ritchie and Rediker, Birmingham, for appellees.
MADDOX, Justice.
This case involves claims of breach of contract and fraudulent misrepresentation arising out of the termination of the plaintiff's employment. The trial court granted summary judgment for the defendants on all counts, and we affirm.
The plaintiff was employed by American Industries in Conway, Arkansas, in 1982. In that year, he was interviewed by Anthony (Tony) Lestingi, acting president of Quartrol Corporation, for a position as manufacturing engineering manager at *1295 Quartrol's Birmingham plant. Selby accepted Lestingi's offer of employment and moved his family to Alabama. Approximately 14 months later, Selby's employment was terminated by Richard Hacherl, who had become president of Quartrol in January of 1983.
At the time Quartrol hired Selby, it memoralized the parties' agreement in two written documents provided by Larry Smith, Quartrol's personnel manager. See appendices A and B.
We first examine Selby's claim that the parties entered into an employment contract of fixed duration. Selby contends that he was guaranteed a minimum of three years' employment. His claim is based upon his deposition testimony regarding an interview he had with Tony Lestingi, Quartrol's agent:
Alabama law is clear that, absent a clear and unequivocal offer of employment for a specified duration, an employment is at-will, Bates v. Jim Walter Resources, Inc., 418 So. 2d 903 (Ala.1982), Hinrichs v. Tranquilaire Hosp., 352 So. 2d 1130 (Ala.1977).
Of course, summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a material fact must be resolved against the moving party. Lolley v. Howell, 504 So. 2d 253 (Ala.1987). If there is a scintilla of evidence supporting the position of the nonmoving party, summary judgment is not appropriate. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981). Was there presented a scintilla of evidence that Selby had anything other than an employment terminable at the will of Quartrol? We think not.
Neither the printed contract (Appendix B), which Selby signed, nor the April 26 itemization of the parties' agreement (Appendix A) contains any language supporting Selby's claim of a three-year contract. Selby conceded, in deposition testimony, that the written documents fairly outlined the terms of the parties' agreement; nonetheless, he maintains that the parties entered into an employment contract of three years' duration. When asked what agreement, if any, existed between the parties that was not expressed in the written documents, Selby testified, in addition to the testimony set out above, that "it was more or less an agreement between me and Tony that, you know, if I came over here, he was wanting me to commit to him and he was committing to me that we were going to stay a minimum of three years and hopefully a whole lot longer than that."
*1296 Assuming, as we must for purposes of reviewing the summary judgment, that the conversation testified to by Selby actually took place, it cannot form the basis for a breach of contract claim, for at least three reasons. First, it was not sufficiently certain to create a binding contract for three years. Second, his testimony of an oral agreement violates the parol evidence rule, and is inadmissible. Third, an oral three-year employment contract would violate the Statute of Frauds. Code 1975, § 8-9-2(1), provides:
"§ 8-9-2. Certain agreements void unless in writing.
Under the facts and circumstances evident here, the evidence also shows no meeting of the minds of the parties on the duration of the employment. Cf. Bates v. Jim Walter Resources, Inc., supra.
We now examine Selby's claim that summary judgment was inappropriate on his fraud claims. Selby makes two separate arguments. First, as stated above, he argues that Lestingi misrepresented to him that his employment would be for a definite duration. Second, he argues that Quartrol, through its agents, and particularly through Hacherl, misrepresented that his job was secure and that there was no reason why he should not build a new home in Birmingham. Specifically, he claims that he was awarded a $1,000 bonus for good performance in April of 1983 and that Hacherl in that month said, "I don't know why you wouldn't want to build a new home," and that Larry Smith, on inquiry by Selby's mortgage company, stated that Selby's prospects for continued employment were "excellent." As a result of these alleged misrepresentations, according to Selby, he was misled into constructing an expensive home, which the agents of Quartrol knew he could afford only if he remained employed by the company. The record shows that, some five months after his termination, and without Selby's having made the first payment during that interim, the mortgage company foreclosed the mortgage on Selby's home.
Selby argues in his brief that the above-stated facts raise an issue of material fact sufficient to withstand a motion for summary judgment on his misrepresentation claims. Counsel for Quartrol, on the other hand, argues several grounds on which to sustain the judgment, including lack of falsity of the statements; lack of proof of a present intent not to perform on the part of Quartrol when the statements were made; and lack of reliance, based on the principles of law set out in the case of Bowman v. McElrath Poultry Co., 468 So. 2d 879 (Ala.1985), in which a farmer brought an action against a poultry company for alleged false representations upon which he claimed he relied to his detriment in purchasing an expensive egg-gathering machine. The Court in Bowman stated the elements of a fraud claim:
It is clear in the present case, from the record and from the briefs of the parties, that the alleged misrepresentations concerned future acts. In such cases, not only must the basic elements of fraudulent misrepresentation, Code 1975, § 6-5-101, be fulfilled, but the plaintiff must also prove two additional elements: (1) that the defendant intended, at the time of the alleged misrepresentation, not to perform, and (2) that the defendant made the representation with a present intent to deceive. Clanton v. Bains Oil Co., 417 So. 2d 149 (Ala.1982). After a careful review of the record, this Court can find no evidence to support an allegation that, at the time the representations were made, the defendants lacked a present intent to perform, and intended to deceive Selby.
We are aware of this Court's case of Winn-Dixie Montgomery, Inc. v. Henderson, 395 So. 2d 475 (Ala.1981). There, the plaintiff relied, to his detriment, on Winn-Dixie's promise of a transfer; evidence was produced in that case, however, that showed that Winn-Dixie lacked a present intent to perform as promised. This case is factually different; therefore, summary judgment was properly granted on the fraud claims. Our judgment on this issue is based, in part, on the fact that there is no evidence that Selby knew, until after he was discharged, that Quartrol, through Smith, had notified the mortgage company that his prospect for future employment was "excellent," but even assuming that Selby knew that Quartrol had made this representation at that time, there is no evidence from which a trier of fact could infer, and therefore find, that Quartrol made this statement with an intent to deceive and with a present intent not to perform.
In light of the foregoing analysis, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
ALMON, BEATTY and HOUSTON, JJ., concur.
ADAMS, J., concurs in the result.
*1298
*1299 | September 25, 1987 |
a2ac97df-df2c-4e8f-8bbe-bddc84ab27e2 | Biddie v. State | 516 So. 2d 846 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 846 (1987)
Ex parte State of Alabama.
(Re Grover Lewis BIDDIE
v.
STATE of Alabama).
86-546.
Supreme Court of Alabama.
September 25, 1987.
Joseph G.L. Marston, Asst. Atty. Gen., for petitioner.
C. Burton Dunn, Birmingham, for respondent.
ADAMS, Justice.
The defendant, Grover Lewis Biddie, was convicted of murder and was sentenced as a habitual offender to life imprisonment without parole. On November 12, 1986, 516 So. 2d 837, the Court of Criminal Appeals reversed Biddie's conviction on the basis of an erroneous oral charge. Biddie was indicted for intentional killing, but the trial court instructed the jury on the offense of reckless murder, as well as intentional murder. We reverse the judgment of the Court of Criminal Appeals, because in a noncapital case, where no objection is made to the erroneous portion of the trial court's oral charge, that issue is not properly preserved for appellate review.
Although not preserved by objection, the Court of Criminal Appeals held that the trial court's oral charge was obvious error and reversed. In Ex parte Washington, 448 So. 2d 404 (Ala.1984), we held that it was reversible error to give an oral charge on "reckless murder" when the defendant was indicted for "intentional murder." However, before addressing the issue of whether the oral charge was erroneous, we first examined the record to see if the issue was properly preserved for appellate review. In Washington, the Court of Criminal Appeals, 448 So. 2d 398, had held that the objection to the oral charge was insufficient to preserve the issue for appellate review. We reversed and held that the objection was sufficient to place the trial court on notice of the alleged error. In Washington, the defendant objected after the court gave its oral charge, but prior to the jury's retirement for deliberation. In the present case, the trial counsel at no time objected.
Ex parte Washington, 448 So. 2d at 406.
Showers v. State, 407 So. 2d 169, 171 (Ala. 1981).
The Court of Criminal Appeals held that the predicate of an objection is no longer required because of Rule 45B, A.R.A.P., which was made effective January 1, 1982. A.R.Crim.P. Temp. Rule 14 mandates that a party object to an erroneous oral charge prior to the jury's retiring, in order to preserve the error for appellate review. Rule 14 went into effect six months after Rule 45B and was cited in Ex parte Washington, supra; however, the Court of Criminal Appeals held that Rule 14 should be interpreted in light of Rule 45B and that errors that are "plain" or "obvious" require no objection predicate. We disagree.
Prior to the adoption of Rule 45B, the Court of Criminal Appeals was required to "search the record" for error in every case. § 12-22-240, Code of Alabama (1975). That Code section provides the following:
Although the Court of Criminal Appeals was required to "search the record" for error, the requirement that the error be preserved was not abolished.
(Citations omitted.) Harris v. State, 347 So. 2d 1363, 1367 (Ala.Cr.App.1977); cert. denied, 347 So. 2d 1368 (Ala.1977). "The plain error doctrine applies only to death cases. Stinson v. State, 56 Ala.App. 312, 321 So. 2d 277 (1975)," Harris, 347 at 1367.
Rule 45B abolished the "search the record" requirement of § 12-22-240. See Ex parte Hoppins, 451 So. 2d 365 (Ala. 1983), and the comment to Rule 45B. However, Rule 45B did not remove the necessity of an objection before the alleged error could be reached on appeal. The Court of Criminal Appeals' opinion cites no Alabama cases and we find no support for the proposition that this rule removes that requirement in non-capital cases. Further, Rule 14, which requires the objection predicate, was enacted after Rule 45B. Following usual principles of statutory construction, and reading the two rules together, we find that they are consistent and that an objection is mandated. We, therefore, hold that the Court of Criminal Appeals erred in holding that an objection was not required, and its judgment is reversed. The cause is remanded to that court for entry of a judgment affirming the judgment of the trial court.
REVERSED AND REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur. | September 25, 1987 |
a5d8e7d1-db71-45d3-9cc4-63d875ff67f3 | Allen v. Knotts | 514 So. 2d 955 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 955 (1987)
Margaret A. ALLEN
v.
Max KNOTTS, et al.
86-913.
Supreme Court of Alabama.
September 18, 1987.
*956 A. Stewart O'Bannon, Jr., of O'Bannon & O'Bannon, Florence, for appellant.
Donna S. Pate of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
Robert E. Jones III of Poellnitz, Cox & Jones, Florence, for appellee Madison Mobile Storage, Inc.
HOUSTON, Justice.
This is an appeal by plaintiff from summary judgment granted to all defendants in a personal injury action.
Margaret A. Allen fell while attempting to gain entry into a 40-foot storage trailer. The trailer was leased to Wal-Mart, Ms. Allen's employer, by defendant Madison Mobile Storage, Inc. ("Madison"), and was parked outside Wal-Mart Store No. 712. Ms. Allen was assistant manager of Store No. 712. The trailer was used to store merchandise for a sidewalk sale. In the process of setting up the sidewalk sale, Ms. Allen attempted to enter the rear of the trailer to help a stockman who was in the trailer locating merchandise. There were no steps or ladder providing access to the trailer, and Ms. Allen could not step up into the trailer. She grasped a chain (placed on the trailer door by Wal-Mart for security purposes) to help hoist or steady herself as she attempted to climb into the trailer. The chain came loose from the door handle and Ms. Allen fell to the parking lot and sustained personal injuries. The defendants were Madison, the lessor of the trailer; Alexsis Risk Management Service; and certain co-employees of Ms. Allen at Wal-Mart, including Max Knotts, manager of Store No. 712; Fred W. Whitmer, district manager in charge of operations; and Bill Adams, regional vice-president of operations.
The trial court did not err in granting Madison's motion for summary judgment.
Wal-Mart leased trailers of standard manufacture from Madison to be used as storage trailers at the Wal-Mart store in Scottsboro, Alabama. One of these was the trailer from which Ms. Allen fell. After the delivery of the trailers by Madison to Wal-Mart, Wal-Mart had total control over when, where, and how the trailers would be loaded and unloaded. Madison did not contract to provide Wal-Mart with loading and unloading equipment or services and did not provide such equipment or services.
It is not necessary for us to decide whether there would be any initial legal liability on the owner of a trailer for failing to provide special steps or a ladder to provide safe access into the trailer. Madison was the lessor of the trailer. The trailer was not in Madison's custody or control at the time of the accident. As to the lessee or the lessee's servant or guest, in the absence of a covenant to repair the defect causing the injury, the lessor is liable only for injuries resulting from latent defects known to the lessor at the time of the leasing and which the lessor concealed from the tenant. Alabama Power Co. v. Dunaway, 502 So. 2d 726 (Ala.1987); Collier v. Duprel, 480 So. 2d 1196 (Ala.1985); Beck v. Olin Co., 437 So. 2d 1236 (Ala.1983); Sanders v. Vincent, 367 So. 2d 943 (Ala. 1978). Ms. Allen was familiar with the trailer from which she fell; she had entered and exited the trailer on prior occasions; and she knew that there were no steps or ladder on which to enter the trailer. If this was a defect, it was not a latent defect. Therefore, Ms. Allen cannot recover from Wal-Mart's lessor, Madison, for personal injuries that she sustained in her fall while trying to enter the trailer, by authority of Alabama Power Co. v. Dunaway, supra; Collier v. Duprel, supra; Beck v. Olin Co., supra; Sanders v. Vincent, supra.
The trial court erred in granting the motion of Alexsis Risk Management Service for summary judgment prior to Alexsis's answering the interrogatories propounded to it by Ms. Allen, which Alexsis had been directed to answer. Noble v. McManus, 504 So. 2d 248 (Ala.1987), Water View Developments, Inc. v. Eureka, Inc., 512 So. 2d 916 (Ala.1987).
*957 The co-employees of Ms. Allen argue in their brief the affirmative defense of contributory negligence; however, this affirmative defense has not been raised by appropriate pleading. These defendants filed a Rule 12(b)(6), Ala.R.Civ.P., motion, which was denied, and they were given 10 days from December 13, 1985, to file an answer. No answer was filed, but over a year later, January 2, 1987, they filed the following motion for summary judgment:
No memorandum in support of the motion appears in the record. It does appear from the record that copies of several cases were mailed by defendants' counsel to the trial judge and counsel for the plaintiff. Those cases deal with various factual situations in which this Court discussed contributory negligence.
An affirmative defense can be raised in a motion for summary judgment prior to filing an answer, Rule 56(b), Ala.R.Civ.P.; Wallace v. Ala. Ass'n of Classified School Employees, 463 So. 2d 135 (Ala.1984); and extensive factual allegations of contributory negligence need not be set out. Brown v. Billy Marlar Chevrolet, Inc., 381 So. 2d 191 (Ala.1980). However, the co-employee defendants in this case failed to properly raise the defense. The motion did not refer to the affirmative defense of contributory negligence. No memorandum in support of the motion appears in the record, nor does the record indicate that a hearing was held on the matter. Even though extensive factual allegations of contributory negligence are not required, we cannot sanction the procedure by which the co-employee defendants contend they raised the contributory negligence defense in this case (i.e., by mailing copies of cases). Our Rules of Civil Procedure, as liberal as their pleading requirements may be, simply do not contemplate such a procedure.
A motion for summary judgment must not be granted unless the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R.Civ.P. Because the co-employee defendants have failed to show that there is no genuine issue as to any material fact and that they are entitled to a judgment as a matter of law, the summary judgment in their favor should not have been granted.
We affirm as to Madison, and reverse and remand as to Alexsis Risk Management Service and the co-employee defendants, Knotts, Whitmer, and Adams.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur. | September 18, 1987 |
8bb6a247-de9f-4804-b64c-8eaa89102527 | Childers v. Winn-Dixie Stores, Inc. | 514 So. 2d 879 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 879 (1987)
Suzanne Smith CHILDERS, et al.
v.
WINN-DIXIE STORES, INC., et al.
85-1365.
Supreme Court of Alabama.
September 4, 1987.
R. Gordon Pate of Pate, Lewis & Lloyd and Hare, Wynn, Newell & Newton, Birmingham, for appellants.
*880 Robert D. Norman, Jr., of Norman, Fitzpatrick, Wood, Wright & Williams, Birmingham, for appellees Birmingham Realty Co. and Russell Cunningham.
Joe R. Wallace of Davies, Williams & Wallace, Birmingham, for appellees Winn-Dixie Stores, Inc., and Danny Faulkner and Tonnie Thomas.
ADAMS, Justice.
Plaintiffs Suzanne Smith Childers, her daughter Suzannah Lane Childers, and her husband David L. Childers, appeal from a summary judgment entered in the Tenth Judicial Circuit of Alabama in favor of the defendants, Winn-Dixie Stores, Inc., Birmingham Realty Company, and Russel Cunningham. We affirm.
At 7:00 in the evening on November 4, 1983, Suzanne and Suzannah Childers exited the Winn-Dixie Store at 3314 Clairmont Avenue, Birmingham, Alabama, after having completed their grocery shopping.
While the Childerses were putting the groceries in their car, two young men came up and snatched Suzanne Childers's purse. Mrs. Childers gave chase, but was unable to catch the them, although she saw them clearly and was able to give a detailed description of them and their car.
As a result of the incident, Suzanne and Suzannah Childers filed suit against Winn-Dixie and Birmingham Realty, et al., claiming that they were injured as a proximate result of the defendants' failure to provide adequate lighting or security guards. They further alleged that the defendants had failed to provide lighting and guards willfully and intentionally with full knowledge of the very danger that caused plaintiffs' injuries. David Childers sued for loss of consortium.
Birmingham Realty filed a motion for summary judgment on February 25, 1986. On March 25, 1986, Winn-Dixie filed a motion for summary judgment. On July 18, 1986, the court granted the summary judgments.
The Childerses state the issue on appeal to be whether "this Court ever intends to require of owners and occupants of retail establishments in this State, any responsibility to invitees to protect them from criminal activity and attack." We have recognized that a duty may be imposed on a storeowner "to take reasonable precautions to protect invitees from criminal attack in the exceptional case where the storeowner possessed actual or constructive knowledge that criminal activity which could endanger an invitee was a probability." Law v. Omelette Shop, Inc., 481 So. 2d 370, 371 (Ala. 1985), citing Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984). We have found, however, that "it is difficult to impose liability on one person for an intentional criminal act committed by a third person." CIE Service Corp. v. Smith, 460 So. 2d 1244, 1247 (Ala.1984). We have not yet found the "exceptional case" where the facts reached the level necessary to impose such a duty. See, e.g., Law, 481 So. 2d at 370; Henley, 456 So. 2d at 275; Ortell v. Spencer Companies, Inc., 477 So. 2d 299 (Ala. 1985); Stripling v. Armbrester, 451 So. 2d 789 (Ala.1984).
In reviewing the police records, one finds it apparent that Mrs. Childers's purse was the only one reported snatched between April 1, 1981, and November 4, 1983. As stated in Law, "this does not even approach the frequency of criminal activity that was present in Ortell, where we held that there was a complete lack of evidence showing the defendant had knowledge, either actual or constructive, that criminal activity of the same nature as harmed Ortell was a probability." Law, supra, at 372.
The plaintiffs failed to offer any proof of the knowledge required to impose a duty on the defendants to protect its invitees from the criminal activity of third persons. The judgment of the Circuit Court of Jefferson County is, therefore, affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | September 4, 1987 |
b5fb87ba-4ec7-4449-ae02-c04076e5fcbd | Bickerstaff v. State | 516 So. 2d 800 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 800 (1987)
Ex parte State of Alabama.
(Re Delton BICKERSTAFF, alias
v.
STATE of Alabama).
85-1279.
Supreme Court of Alabama.
September 18, 1987.
George N. Hardesty, Jr., Sp. Asst. Atty. Gen., for petitioner.
Frank C. Wilson III of Gamble, Gamble & Calame, and J. Patrick Cheshire, Selma, for respondent.
ADAMS, Justice.
The defendant, Delton Bickerstaff, was convicted of manslaughter. The Court of Criminal Appeals reversed, 516 So. 2d 798 holding that if a significant period of time lapses between the time of a traffic accident and the time witnesses observe a party involved in the accident and conclude that he was intoxicated, and it is shown that during that interim the party had access to alcohol, then as a matter of law, the witnesses cannot testify that the party was intoxicated at the time of the accident. We reverse the decision of the Court of Criminal Appeals and hold that it is the duty of the trier of fact to determine, when a driver is found to be intoxicated, whether the driver's drunken condition existed at the time of the accident or arose in the interim between the accident and the investigation.
At 7:30 p.m., on April 24, 1984, Bickerstaff drove his pickup truck into a vehicle driven by Kathryn McCullough. As a result of injuries sustained in the accident, *801 McCullough died. Twenty-one minutes later, two State Troopers arrived at the scene and found McCullough's vehicle and a car driven by Ann Barnette.
Barnette was the only witness to the accident. She stated that Bickerstaff's truck hit McCullough's vehicle and that Bickerstaff had not stopped. She also hit McCullough's vehicle.
After a few minutes, the State Troopers found Bickerstaff and his truck in a field approximately 50 feet from the road. Inside the truck the Troopers found many beer cans, some empty, some full, and a half emptied bottle of liquor. The State Troopers and Barnette all testified that Bickerstaff was intoxicated. None of the witnesses who testified saw Bickerstaff from the time of the accident until he was found with his truck sometime after 7:51 p.m. A minimum of 21 minutes passed before anyone saw Bickerstaff. The trial court permitted the witnesses to testify about Bickerstaff's state. However, the Court of Criminal Appeals reversed that decision, because it said, a substantial time had passed and Bickerstaff had had access to alcohol during that time; therefore, according to the Court of Criminal Appeals, it was not clear if his intoxication was the product of alcohol consumption prior to or after the accident.
The Court of Criminal Appeals quoted Montgomery v. State, 44 Ala.App. 129, 203 So. 2d 695 (1967), and cases cited and quoted therein, for the proposition that it is impermissible to allow the state to show that a defendant had been drinking, or was intoxicated, at the time of an alleged offense when it is shown that the defendant had access to alcohol after the offense and a substantial amount of time passed from the commission of the offense until the witnesses' observation of the defendant.
Questions of fact are usually questions for the jury, whereas questions of law are within the province of the court. Harris v. State, 280 Ala. 468, 195 So. 2d 521 (1967) (applying the rule to the admission of confessions). The factors to be weighed in determining whether the defendant was in fact intoxicated at the time of the offense are: (1) testimony of the witnesses, (2) access to alcohol, and (3) the amount of time between the commission of the offense and the observation of the defendant.
It is true that within a substantial amount of time after the commission of an offense, if the defendant had access to alcohol, he could become intoxicated. However, we do not view this determination to be one of law. It is for the jury to decide whether the defendant had access and whether a substantial amount of time passed. As stated by Justice Maddox in his dissent in Elmore v. State, 348 So. 2d 269, 271 (Ala.1977), "I believe that Ayers v. State, 48 Ala.App. 743, 267 So. 2d 533 (1972), ... states the better rule, that is, that a driver's drunken condition after an automobile accident can be a fact from which the jury would infer that he was driving the automobile while in that condition." On this point, insofar as Montgomery v. State, supra, and cases cited therein, state a different rule, we overrule them, and hold that such questions are questions of fact, not law, and that it is up to the trier of fact to weigh those factors and determine whether the defendant was intoxicated and, if so, whether the intoxication was a result of alcohol consumption prior to or after the commission of an offense. Thus, the requirement that the State show that the defendant did not have access to, or consume, alcoholic beverages after the accident is now removed.
At trial, the jury found Bickerstaff guilty of manslaughter, as a lesser included offense to murder. By its decision, the jury determined that Bickerstaff was in fact intoxicated at the time of the accident. On appeal, we will not overturn factual determinations made by the jury unless it appears that such determinations are plainly and palpably erroneous. City of Mobile v. Jackson, 474 So. 2d 644 (Ala.1985). It does not appear that the jury's determination in this case was erroneous.
For the reasons stated, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded for that court to *802 reinstate the judgment judgment of the trial court.
REVERSED AND REMANDED.
MADDOX, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur.
TORBERT, C.J., and JONES and ALMON, JJ., concur in the result. | September 18, 1987 |
039d56f4-7cfc-45ff-aedd-3fc784e5cae2 | Ex Parte Jones | 514 So. 2d 1068 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1068 (1987)
Ex parte James Hugh JONES.
(Re James Hugh Jones v. State of Alabama).
86-1112.
Supreme Court of Alabama.
September 4, 1987.
Stephen K. Orso, Mobile, for petitioner.
Don Siegelman, Atty. Gen., for respondent.
Prior Report: Ala.Cr.App., 514 So. 2d 1060.
ADAMS, Justice.
In denying this petition for a writ of certiorari, we are not to be understood as agreeing with the assertion in the opinion of the Court of Criminal Appeals that the accused was entitled to a charge on the lesser included offense of negligent homicide.
WRIT DENIED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | September 4, 1987 |
3116f53c-5a03-47fa-b48d-36e49fab9ebe | Bell v. Hart | 516 So. 2d 562 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 562 (1987)
Katie C. BELL and John P. Bell
v.
G. Rodney HART.
85-878.
Supreme Court of Alabama.
September 25, 1987.
Rehearing Denied November 6, 1987.
*563 Barry Hess and William B. Jackson II of Hess, Atchison & Horne, Mobile, for appellants.
W. Boyd Reeves, Edward C. Greene, and Richard E. Jesmonth of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.
PER CURIAM.
The issue on appeal is whether John Guy Fisher III, Phar.D. (pharmacist), and Howard Lee Miller, Ph.D. (psychologist), were competent to testify as expert witnesses concerning the correct dosage and effect of the anti-depressant drug Elavil. The trial court determined that they were not competent to testify and granted summary judgment in favor of a doctor who had been sued for malpractice. We affirm.
On April 24, 1981, plaintiff Katie Bell went to Dr. G. Rodney Hart's office, complaining of headaches, weakness, insomnia, agitation, depression, and painful leg cramps. Bell had complained of these symptoms on prior visits to Dr. Hart's office. In view of the persistent nature of these problems, Dr. Hart had her admitted to Mobile Infirmary on April 24, 1981, for a complete medical evaluation.
Bell remained in the hospital for approximately two weeks. During this time, she underwent a thorough medical evaluation, which included examinations by vascular and neurological specialists, as well as tests of her liver, kidney, blood, muscle, and thyroid functions. After these tests, Dr. Hart was still unable to determine the source of her complaints, and on May 5, 1981, she was discharged from the hospital, at which time Dr. Hart prescribed Elavil, a tricyclic anti-depressant. She was to take the Elavil daily in a single 300-milligram dosage at bedtime. Dr. Hart hoped that the Elavil would eliminate her insomnia and the intense pain that she suffered as a consequence of leg cramps. She took the prescribed dosage on the first night she was home from the hospital, May 5, 1981. *564 On the morning of May 6, her husband, John Bell, telephoned Dr. Hart's office and informed his receptionist that his wife had been incoherent and confused following her ingestion of Elavil. The Bells were instructed to proceed to the Providence Hospital Emergency Room for treatment; instead Mrs. Bell went to the Mobile Infirmary Emergency Room, where her condition was monitored for several hours. Subsequently, she was discharged to her home under orders from Dr. Hart.
The following day, May 7, she returned to Dr. Hart's office. At this visit, she appeared to be agitated and upset, attributing her incoherence and confusion to her ingestion of Elavil. Dr. Hart discontinued her use of Elavil and advised her to return to his office in one week. She did not return as instructed, and within four months filed this suit.
In her suit, she and her husband alleged that Dr. Hart committed medical malpractice in connection with his care and treatment of her during April and May of 1981. Specifically, they alleged that Dr. Hart negligently prescribed Elavil for her, and that his malpractice was so egregious as to constitute wanton and reckless misconduct.
Dr. Hart answered the complaint by denying any negligence or other improper conduct in connection with his care and treatment of her. Before trial, he filed three motions for summary judgment, alleging that the Bells had failed to present expert medical testimony regarding his negligence. The trial court denied all of these motions. Prior to the selection of the jury at trial, however, Dr. Hart filed motions, in limine, seeking to exclude the testimony of John Fisher and Howard Miller, a pharmacist and a psychologist respectively, on the ground that they were not competent to testify as experts.
The Bells were relying on the testimony of these two experts to prove that Dr. Hart negligently prescribed Elavil for Katie Bell. The first of these experts, Fisher, received a B.S. degree in pharmacy in 1974, from Samford University. He completed a one-year pharmacy internship at the Veterans' Administration Hospital in Birmingham after graduation. In 1976, he graduated with a Doctor of Pharmacy degree from the University of Tennessee Center for Health Sciences. While earning his doctorate in pharmacy, Fisher had two to four quarters of classroom work primarily involving the use of drugs and their effect when used in various disease states, which is referred to as pharmacotherapeutics. In addition, he took a number of courses in pharmacokinetics, which is the study of how the body reacts to drugs once they are in the body.
Fisher testified in deposition that, after his graduation in 1976, he taught at the College of Community Health Sciences at the University of Alabama as an assistant professor of family medicine. He was also the head of the family medicine department in applied pharmacology. In this position, Fisher was a consultant in drug therapy for third- and fourth-year medical students and for the 30 family medicine residents in the College of Community Health Sciences. He made the rounds with these students as they saw their patients and acted as a consultant about "alternative methods of treatments, proper doses, and potential side effects."
Fisher is presently employed as the chief of clinical pharmacokinetic services at Druid City Hospital, Regional Medical Center, in Tuscaloosa. In this job Fisher consults with doctors on the staff regarding drug problems that are occurring in their patients. It is also his job to run a drug and toxicology laboratory at the hospital, to perform all of the drug screens that are done in the hospital, and to measure the quantities of various drugs in the blood and other parts of the body. Fisher is also an associate director of the Alabama Poison Center, and he has worked as a pharmacist in Tuscaloosa. Finally, Fisher testified that he has had occasion to study and review literature and treatises by experts and various professionals that examined the effect of certain prescriptive drugs, including what are generally referred to as tricyclic anti-depressants such as amitriptylene hydrochloride (Elavil).
The Bells wanted to use Howard Lee Miller as their second expert witness. Miller *565 had a bachelor's degree and a master's degree in psychology from Western Missouri University. He received a doctorate in external psychology from the University of Hawaii, and he obtained a post-doctoral degree in the basic medical sciences program at Western Missouri University School of Medicine. Additionally, Miller had an experimental pathology fellowship at the Institute of Pathology and received a master of public health degree from the School of Public Health at the University of Alabama in Birmingham. Miller testified in deposition that he has had occasions to take courses and to do research related to the prescription, use, dosage, and administration of various drugs under different circumstances. He has studied pharmacology, psychopharmacology, and toxicology. In addition, Miller has taught college level courses in psychopharmacology, which is related to the use, dosage, and administration of drugs and the effects of drugs upon individuals who have taken them under varying circumstances, including, but not limited to, psychiatric drugs that might affect the central nervous system. Miller testified that he had been a certified or licensed drug investigator for the Drug Enforcement Agency and that part of his responsibilities included doing research on drugs and their effects.
Miller has been a consultant to numerous mental health clinics, including the Alabama Bureau of Vocational Rehabilitation, the Ohio Bureau of Vocational Rehabilitation, the Lowndes County Health Department, the Northwest Alabama Rehabilitation Center, and the Muscle Shoals Mental Health Center. Part of his duties included consultation, diagnosis, and recommendations to doctors about clients or patients and the medications that they were taking. Miller further testified that his education, his clinical and professional experience, and his studies gave him the opportunity to consider, review, and ascertain the accepted standard of care in the medical community for the use, dosage, and administration of amitriptyline hydrochloride, or Elavil. In this connection, Miller testified that tricyclic anti-depressants formed a major subject of the consulting and teaching that he did in psychopharmacology, and that he had reviewed the primary literature and original research studies on these drugs and was familiar with them.
Both "experts" testified that Dr. Hart deviated from the accepted standard of care in the medical community for the prescription, dosage, and administration of the drug Elavil to plaintiff Katie Bell.
After reviewing the depositions of Fisher and Miller, the court granted Hart's motion in limine. Hart then filed a motion to have the court reconsider its order denying his third motion for summary judgment. The trial court granted the third motion for summary judgment. The Bells appeal from that judgment.
The first issue raised on appeal is whether the trial court erred when it excluded the testimony of Fisher and Miller on the ground that they were not competent to testify as to the standard of care within the medical community with respect to the use, dosage, and administration of Elavil.
The plaintiffs contend that the trial court erred when it determined that the only expert who can testify to the acceptable standard of care in the community, and whether someone has deviated from that standard of care, is a physician licensed to practice medicine. The Bells argue that a person who can show that he has the educational, clinical, and professional experience and the affiliations with the medical community that Fisher and Miller have is competent to testify in medical malpractice cases as an expert witness as to the acceptable standard of care in the medical community. Dr. Hart contends that, in medical malpractice cases, proof as to what is or is not proper practice, treatment, and procedure ordinarily can be established only by another physician, who is shown to be qualified. Dr. Hart argues that plaintiffs' "experts," a non-physician pharmacist and a non-physician psychologist, clearly were not competent to testify as to Dr. Hart's alleged deviation from the appropriate standard of care.
The standard of review in summary judgment cases is well established. Summary *566 judgment is proper only when the pleadings and affidavits submitted by the movant show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Bon Secour Fisheries, Inc. v. Barrentine, 408 So. 2d 490 (Ala.1981). This rule must be considered in light of the scintilla evidence rule applicable in Alabama. Woods v. Commercial Contractors, Inc., 384 So. 2d 1076 (Ala. 1980).
In the Alabama Medical Liability Act, §§ 6-5-480 through -488, Code of Alabama 1975, the legislature addressed liability of medical professionals in the context of patient-doctor relationships in all of its aspects, viz., tort and contract. Thomasson v. Diethelm, 457 So. 2d 397 (Ala.1984).
"In performing professional services for a patient, a physician's ... duty to the patient shall be to exercise such reasonable care, diligence and skill as physicians... in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case." Section 6-5-484(a), Code 1975. Generally, a plaintiff must offer expert medical testimony as to what is such reasonable care, diligence, and skill (what is and what is not proper medical treatment and procedure). Gilbert v. Campbell, 440 So. 2d 1048 (Ala. 1983). There are two exceptions to the foregoing general rule that have been recognized. First, where the want of skill or lack of care is so apparent as to be within the comprehension of the average layman and thus requires only common knowledge and experience to understand, no expert medical testimony is necessary. Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969); Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So. 2d 156 (Ala.1984). This exception has usually been applied under circumstances where the doctrine of res ipsa loquitur is applicable, or where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment. (See Rosemont, Inc. v. Marshall, 481 So. 2d 1126, 1130 (Ala.1985)). The other exception to the general rule is where the plaintiff introduces a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice. Zills v. Brown, 382 So. 2d 528 (Ala.1980).
This is an action brought under the Alabama Medical Liability Act. The defendant physician, in support of his motion for summary judgment, offered expert medical testimony as to the appropriate standard of care and expert medical opinions that his treatment of Mrs. Bell was not a deviation from that standard of care. To defeat the defendant's motion for summary judgment, it was then incumbent upon the Bells to establish by expert medical testimony the appropriate standard of care and a breach thereof by the defendant or to show that this case came within one of the two exceptions (Gilbert v. Campbell, 440 So. 2d 1048 (Ala.1983); Rosemont, Inc. v. Marshall, supra) in order to create a genuine issue of material fact as to this essential element of their cause of action. Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986).
We are of the opinion that the trial court correctly excluded the testimony of Fisher and Miller on the ground that they were not competent to testify as experts on the standard of care of physicians in prescribing the drug Elavil.
The Bells contend that the fact that neither expert was a medical doctor does not disqualify him from testifying as to the accepted standard of care in the medical community if he can otherwise show that he is qualified to render such an opinion. They cite this Court's case of Wozny v. Godsil, 474 So. 2d 1078, 1087 (Ala.1985), wherein this Court held as follows:
This Court did hold in Wozny, supra, that where a plaintiff can establish that his expert witness is knowledgeable, because of his educational background, his clinical training, or his professional experience, of the methods and standards of care exercised by medical practitioners, and particularly where there is a substantial overlap as to the standards and methods of treatment involved, then the witness is competent to testify.
The precise holding in Wozny was that the affidavit of an osteopathic practitioner in that case rendered summary judgment in favor of the defendant-orthopaedic surgeon improper, this Court noting that the affidavit demonstrated that the standard of care with regard to osteopathic treatment and that of orthopaedic surgery were similar as they related to the care and treatment of the injury sustained by plaintiff. The Court also recognized that the practice of osteopathy was the practice of medicine. Code 1975, § 34-24-50.
Appellant also cites Police & Firemen's Ins. Ass'n v. Mullins, 260 Ala. 173, 69 So. 2d 261 (1953), wherein this Court addressed the qualifications and competence of the medical testimony of a person other than a doctor, and wrote:
260 Ala. at 178-79, 69 So. 2d at 266.
This, of course, is a correct statement of the law; however, we believe that the holding in Mullins is narrower than appellant suggests and does not apply in the context of a medical malpractice case. In Mullins, a state toxicologist was allowed to testify as an expert with regard to the symptoms of carbon monoxide poisoning and whether the victim died as a result of an accidental carbon monoxide poisoning or from natural causes. Medical malpractice in the prescribing of drugs was not an issue there, and the competence of a toxicologist to testify in a medical malpractice case was not involved in that case.
Appellants also cite Dimoff v. Maitre, 432 So. 2d 1225 (Ala.1983). There, this Court examined the question of whether a certified dental laboratory technician was competent to testify as to whether a dentist had deviated from the standard of care in the dental community when he prepared and took impressions of the plaintiff in order to construct crowns and bridges. In holding that the affidavit of the dental laboratory technician was sufficient to raise an issue of fact for purposes of getting to a jury, this Court wrote:
432 So. 2d at 1226-27.
The Dimoff case also can be distinguished from this case. In Dimoff, while finding summary judgment inappropriate, this Court opined:
432 So. 2d at 1226-27, quoting Lloyd Noland Foundation, Inc. v. Harris, 295 Ala. 63, 66, 322 So. 2d 709 (1975); Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969). The negligence attributed to Dr. Hart, unlike that attributed to Dr. Maitre in Dimoff, is not of such a nature as to be within the comprehension of a layperson. While a layperson quite conceivably could comprehend the standard of care applicable to the taking of dental impressions with a plaster-like substance, it is inconceivable that a layperson could comprehend the standard of care applicable to the prescription of Elavil.
We are of the opinion that this case is more like the case of Kriewitz v. Savoy Heating & Air Conditioning Co., 396 So. 2d 49 (Ala.1981), wherein the Court addressed a similar issue:
"* * *
The only case to which this Court has been cited, or which we have found by *569 independent research, regarding the question of whether a pharmacologist[1] is competent to testify as to whether the action of a medical doctor was negligent, is Rodriguez v. Jackson, 118 Ariz. 13, 574 P.2d 481 (Ct.App.1977). The Rodriguez case is remarkably similar to the case at issue. In that case, the plaintiff charged a medical doctor with malpractice as a result of his alleged deviation from the applicable standard of care in prescribing a drug for ingestion by plaintiff. Plaintiff did not offer the testimony of a physician that the defendant was negligent, but offered a witness who held a post-doctorate degree in pharmacology to testify as to the standard of care in the medical community. The trial court entered summary judgment for the defendant. The Arizona Court of Appeals affirmed the entry of summary judgment and in doing so wrote the following:
118 Ariz. at 17, 574 P.2d at 485.
The question of whether a witness is qualified to render expert testimony is a question traditionally left to the sound discretion of the trial court, and the decision of the trial court will not be disturbed on appeal unless this Court finds that the trial court abused its discretion. Meadows v. Coca-Cola Bottling Inc., 392 So. 2d 825 (Ala.1981). We cannot find that the trial court abused its discretion in excluding the testimony of the pharmacist as to whether a medical doctor was negligent.
In Lundgren v. Eustermann, 370 N.W.2d 877 (Minn.1985), the Supreme Court of Minnesota held that a psychologist was not competent to testify as to the standard of care obtaining in the medical community with regard to the use of prescription drugs. In so holding, the court stated:
370 N.W.2d at 880-81 (emphasis added).
The qualifications of Dr. Rucker, as stated by the Minnesota court, bear a striking resemblance to Howard Lee Miller's qualifications in this case. The logic employed by the Minnesota court in reaching its conclusion that Dr. Rucker was not competent to testify is compelling: neither Dr. Rucker nor Howard Lee Miller has any "practical experience or knowledge of what physicians do." For this reason, the trial court clearly did not abuse its discretion in excluding the testimony of Dr. Miller.
We are of the opinion that unless the conduct complained of is readily ascertainable by lay persons, the standard of care must be established by medical testimony. "Medical testimony" means testimony by physicians or properly introduced medical treatises that are recognized as authoritative and standard works in the medical profession.
Although both Fisher and Miller are shown to be highly qualified experts in their fields of study, we cannot permit them to testify whether a medical doctor followed the proper standard of care in prescribing the drug Elavil. Neither was shown to be authorized to prescribe the drug. While their knowledge of the drug and its effect on the human body may or may not be greater than that of a medical doctor authorized by law to prescribe the drug, we cannot permit a nonphysician, who cannot legally prescribe a drug, to testify concerning the standard of care that should be exercised in the prescription of the drug.
Finding no applicable exceptions to the general rule that proof as to what is or is not proper practice, treatment, and procedure can be established only by expert medical evidence, we conclude, as did the trial court, that summary judgment was appropriate. We would point out that appellants made no attempt to introduce any evidence from another medical doctor regarding this case, and the defendant raised at every opportunity this failure of proof.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur.
JONES, J., dissents.
ALMON and ADAMS, JJ., not sitting.
JONES, Justice (dissenting).
I agree with the Court's opinion that the expert testimony of the two nonphysician witnesses is not admissible to prove that the defendant/physician was negligent in the mere prescribing of the drug Elavil. Only another physician (a medical doctor) would be competent to testify whether Ms. Bell's symptoms, along with her general physical condition, warranted the Elavil prescription. The two health care providers whose testimony is here challenged cannot testify, for example, that Dr. Hart violated the proper standard of care in his choice of the drug Elavil as the appropriate treatment of his patient. Where, as here, however, the gravamen of the action is the alleged overdosage of the prescribed medication, the pharmacist is competent to testify as an expert, by reference to the same publication used for that purpose by the physician, that the dosage prescribed exceeded the maximum allowable dosage. For this reason, I respectfully dissent.
[1] Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982), is cited by the plaintiffs for the proposition that a pharmacologist is qualified to testify as an expert witness on the standard of care in the medical community as it relates to the prescription and the use and administration of prescription drugs. The pharmacologist in Pratt held a medical degree in addition to a post-doctorate degree in pharmacology and would be permitted to testify in Alabama under authority of Wozny v. Godsil, 474 So. 2d 1078 (Ala.1985). | September 25, 1987 |
8e0ed13f-a99f-442b-8a31-92221e4dbe40 | Scullin v. Cameron | 518 So. 2d 695 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 695 (1987)
Chriss SCULLIN
v.
John Gray CAMERON, Jr.
86-195.
Supreme Court of Alabama.
September 25, 1987.
Rehearing Denied January 8, 1988.
Robert B. Roden and Jeffrey A. Brooks, of Roden & Hayes, Birmingham, for appellant.
Wilbor J. Hust, Jr., of Zeanah, Hust & Summerford, Tuscaloosa, for appellee.
BEATTY, Justice.
Plaintiff appeals from the dismissal of his personal injury action for want of prosecution. We affirm.
The complaint, filed on October 12, 1984, in Marengo Circuit Court, alleged that plaintiff Scullin was negligently or wantonly injured by the defendant Cameron. The complaint was filed by Michael Blalock, a Birmingham lawyer. Also listed as counsel for plaintiff was Rocco J. Leo, also of Birmingham.
On November 5, 1984, defendant filed a motion to dismiss, which was overruled on November 6, 1984.
On December 12, 1984, plaintiff propounded interrogatories to defendant, and these were answered on August 8, 1985. In turn, the defendant propounded interrogatories to plaintiff on October 17, 1985. On October 10, 1985, defendant deposed two witnesses who were present at the accident scene. Mr. Leo associated another attorney to attend these depositions.
On July 25, 1985, Mr. Leo engaged Wyman Gilmore, an attorney from Grove Hill, to appear at the call of the docket, and engaged Gilmore again on November 7, 1985, for the same purpose. Even so, the record does not disclose that either Mr. Leo or Mr. Blalock at any time withdrew as counsel.
Then, on May 7, 1986, Mr. Robert Roden of Birmingham was associated by Mr. Leo. A short time later, plaintiff was deposed by the defendant in Mobile. This deposition was attended by Mr. Roden's associate, Mr. Jeffrey A. Brooks.
In July 1986, the Marengo Circuit Court mailed to the attorneys of record notices of the pre-trial docket to be called on August *696 20, 1986. At this docket call, the defendant's counsel was present; however, none of plaintiff's lawyers attended. Nevertheless, defendant's counsel announced he was ready for trial, and, although in his affidavit Mr. Brooks states that he "did not announce ready for trial for the week of September 22, 1986," the motion for continuance filed on September 22, 1986, by his associate, Mr. Roden, states that "[a]t the time Plaintiff announced ready for trial, the Plaintiff's counsel of record, Mr. Robert Roden, was not sent out to trial in the Tenth Judicial Circuit," but that "[a]t this time [September 22, 1986], [he] has been sent out to trial." Nevertheless, the trial docket was mailed to the parties on August 21, 1986, showing that this case was to be the first called for the week of September 22, 1986. Accompanying this trial docket was a pre-trial order that contained, among other things, the following statement:
In his brief, plaintiff concedes that "[o]n August 26, 1986, Mr. Roden's office received a trial docket for jury cases set in the Circuit Court of Marengo County for the week of September 22, 1986," but he contends that "[a]t that time, Mr. Roden was in New York City and did not become aware of the setting of the case until September 2, 1986."
In compliance with the pre-trial order entered August 20, 1986, the defendant mailed to plaintiff's counsel on September 10, 1986, a list of witnesses and exhibits that they expected to use at trial. Plaintiff, on the other hand, did not deliver such a letter to defense counsel.
Some three weeks before the trial, the defendant contacted T.L. Barrow, an Alabama state trooper, on the possibility of his testifying at trial. Trooper Barrow informed defense counsel that he would be absent from the state on the trial date, and suggested that he be deposed should his testimony be necessary. Apparently, the plaintiff did not contact this potential witness until sometime during the week before trial and more than two years after the officer had investigated the accident in question and prepared a report thereon.
After filing notices on August 26, 1986, the defendant took the depositions of Dr. Judy Travis and Frank Kratzer on September 3; of Jesse Simpson on September 4; and of Lisa Randolph on September 15. The defendant was never informed of any inconvenience to plaintiff caused by these settings, and, apparently, there was none.
On September 5, 1986, defendant requested that Mark Willie and Russell Curtis be subpoenaed to appear as witnesses at trial set for September 22, 1986.
*697 Apparently, plaintiff decided on or about September 12, 1986, to take the deposition of Dr. John A. Tucker, and a message to that effect was left with defense counsel's office. Plaintiff's counsel contacted defense counsel by telephone on Wednesday, September 17, to discuss the scheduling of Dr. Tucker's deposition for Friday, September 19. Having informed plaintiff's counsel that his other engagements would not permit this deposition on that date, the defense counsel suggested alternatives, i.e., that the deposition be taken on Saturday, September 20, or that the physician simply be subpoenaed for the trial scheduled for the following Monday. In response to this conversation, plaintiff's counsel sent a notice to defense counsel of the taking of this deposition for Friday, September 19, which was received by defense counsel on September 18, despite his previously announced conflicts. Plaintiff's counsel then telephoned the trial judge and requested that he require defendant's counsel to attend Dr. Tucker's deposition. The trial court refused this request because plaintiff had not complied with the court's pre-trial order to deliver his list of witnesses. Plaintiff's counsel also requested a continuance then on the multiple grounds that Dr. Tucker and Trooper Barrow would be absent from trial and that Mr. Roden would be engaged in a certain trial in the Tenth Judicial Circuit (Birmingham). It appears that in this conversation Mr. Roden stated that other counsel would be present in Marengo County for the trial should he be unable to attend. The trial court denied the request for a continuance.
On Friday, September 19, 1986, plaintiff had subpoenas issued for Trooper Barrow and for various sets of hospital records of Carraway Methodist Medical Center in Birmingham, Whitfield Memorial Hospital in Demopolis, and Norwood Clinic in Birmingham. On that same day, plaintiff learned that Trooper Barrow would be absent from the state during the week of trial, which was to begin three days later.
On Monday, September 22, 1986, which was the scheduled trial date, the defendant, his attorney, and witnesses from Demopolis, Montgomery, and Mobile, Alabama, as well as Lawrenceville, Georgia, were present in court. Plaintiff was also present with counsel, Mr. Frost and Mr. Brooks. At this time, plaintiff renewed his request for a continuance on the same grounds as asserted before.
In the colloquy that followed between the trial court and counsel, the court observed that the case was the oldest on its docket and that it could find no evidence of any formal discovery begun by plaintiff since interrogatories were filed in December, 1984. The judge denied the motion for continuance "[b]ased upon reviewing the entire file and based upon the argument and based upon the conversations I had with both attorneys Thursday." The following appears in the record:
Plaintiff's motion to reconsider was subsequently denied, and this appeal ensued.
Plaintiff, on appeal, argues that the trial court abused its discretion by overruling the motion for a continuance and by dismissing plaintiff's case for want of prosecution.
In this jurisdiction, it has been "often held that continuances are not favored and that a trial court's denial of a motion for continuance will be upset only when a palpable or gross abuse of discretion has been shown." Johnson Publishing Co. v. Davis, 271 Ala. 474, 496, 124 So. 2d 441, 459 (1960). This statement conforms to the general rule as stated in 5A C.J.S. Appeal & Error § 1583 at 24, and quoted with approval in Steele v. Gill, 283 Ala. 364, 368, 217 So. 2d 75, 79 (1968): "`As a general rule, an appellate court will not review the action or rulings of the trial court with reference to matters resting in the latter's judicial discretion, unless such discretion has been clearly and prejudicially abused.'" The Court in Steele added at 283 Ala. 369, 217 So.2d 80:
Prior to the trial court's denial of the continuance in this case, the court had granted four continuances. There had been a lapse of one and one-half years between the last formal discovery exercised by plaintiff and the trial date. Although there is a dispute as to whether plaintiff announced ready for trial at the pre-trial call, apparently word was sent by Mr. Roden's office that the case would be ready for trial. Notice of the trial date was sent to both parties on August 21, 1986, one month before the trial date. Mr. Roden concedes that on August 26, 1986, his office received notice of the trial setting of the case. Although Mr. Roden insists that his associate, Mr. Brooks, notified the trial court's secretary of Mr. Roden's unavailability until the first or second week in October 1986, there was no showing that other counsel was not available. Indeed, Mr. Brooks had attended the plaintiff's deposition in Mobile on May 22, 1986, and was familiar with discovery conducted since May 7, 1986. Mr. Brooks was apparently plaintiff's counsel who was in charge of securing the testimony of Dr. Tucker and Trooper Barrow; he had discussions with both and there is some evidence that during the September 18 conversation between defendant's counsel, Judge Neilson, and Mr. Roden, the latter stated that he would send other counsel should he be unable to attend.
Mr. Roden argues that he should have received a continuance because he was engaged in a trial in Birmingham. This justification has received attention before. In Vold v. Hand, 366 So. 2d 279, 280 (Ala. 1979), this Court quoted from an earlier decision, City of Birmingham v. Goolsby, *699 227 Ala. 421, 150 So. 322 (1933), on that subject:
"`"Ordinarily the fact that an attorney is professionally engaged elsewhere in the trial of a cause does not give an absolute right of continuance, and a denial of the application is generally sustained as an exercise of sound discretion. The courtesy existing between members of the bar, and recognized by trial courts, will usually in such cases enable a counsel to postpone a cause for a few days in one of the courts so as to enable him to be present at both trials. But this is purely a matter of grace and not of law. The rights of litigants in one court are not to be determined by the condition of the docket in another, nor because an opposing counsel has assumed duties in different courts which may conflict. Cases may of course arise when the denial of the right of continuance might amount to an abuse of discretion; but under such circumstances it is not sufficient to show that the absent attorney was expecting a case to be called in another court, but it must be shown that he is at the time actually engaged in the trial of the other cause. Moreover it must be made to appear that under the circumstances other professional advice is unavailable, and that there is a meritorious cause of action or defense thereto which cannot be effectively presented without the presence of the absent attorney."'"
In this case, none of the conditions recognized in those opinions as mandating a continuance was established here. Plaintiff first stated his grounds for a continuance on September 18. Mr. Roden was not engaged in another trial on that date. It appears from the record that the trial court on that date had clearly considered and ruled upon that ground for a continuance. There is nothing in the record indicating that Mr. Roden or anyone else in his law firm attempted to obtain a continuance in the prospective trial of any other case. Although Mr. Roden asserts in his brief that he was engaged in the trial of a case in Jefferson Circuit Court on September 22, 1986, the case to which he refers, Kynard v. Seaboard Railroad, Inc., CV 82-0837, was not tried on September 22 but was continued generally and then reset for May 11, 1987. Thus, Mr. Roden was not professionally engaged in the trial of another case. At most, it appears that Mr. Roden was "directed to appear" and "be ready for trial" on the Birmingham case. That situation was found in Vold, supra, to be insufficient. Moreover, as we have already observed, it has not been established that other counsel was unavailable, or that this action, if meritorious, could not "be effectively presented without the presence of the absent attorney." Goolsby, supra. Under these circumstances, we cannot find that the trial court "acted arbitrarily without the employment of its conscientious judgment, or ... exceeded the bounds of reason in view of all the circumstances, or... ignored recognized rules or principles of law or practice as to result in substantial injustice." Steele, supra, 283 Ala. at 369, 217 So. 2d at 80. Thus, the denial of a continuance was not error.
This Court has recognized the necessity of carefully scrutinizing dismissals with prejudice, while at the same time preserving the inherent power of a court to act sua sponte to dismiss an action for want of prosecution when a plaintiff's conduct mandates such action. Smith v. Wilcox County Board of Education, 365 So. 2d 659 (Ala. 1978). As stated in Selby v. Money, 403 So. 2d 218, 220 (Ala.1981): "In every action there comes a point when the interest of the court in controlling its calendar and the risk to the defendant outweigh the interest in disposing of the litigation on the merits." See also Rule 41(b), A.R.Civ.P., and comments.
Here, when the trial court denied plaintiff's motion for a continuance, the plaintiff refused to proceed with jury selection and trial. It appears that this deliberate action on plaintiff's part was due solely to that denial. Indeed, when plaintiff refused to proceed, the trial court had no alternative but to dismiss the case. Under those circumstancesthe continuance having been *700 properly denied, the defendant and his witnesses being present and ready for trial, and the plaintiff willfully refusing to proceedthis Court cannot hold that the trial court was in error for entering a dismissal. To have done otherwise would, indeed, have been to grant the continuance, which, in its discretion, the trial court had denied.
Let the judgment be affirmed.
AFFIRMED.
MADDOX, SHORES, HOUSTON and STEAGALL, JJ., concur. | September 25, 1987 |
85e33cb1-788e-445c-bbf0-5b06fa879f6d | Ex Parte Shelby County | 516 So. 2d 525 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 525 (1987)
Ex parte SHELBY COUNTY.
(In re SHELBY COUNTY v. CITY OF BIRMINGHAM, et al.)
86-1141.
Supreme Court of Alabama.
September 11, 1987.
Rehearing Denied November 6, 1987.
Frank C. Ellis, Jr., and J. Frank Head of Wallace, Ellis, Head & Fowler, Columbiana, for petitioner.
*526 David J. Vann of Carlton, Vann & Stichweh, Birmingham, for respondents.
PER CURIAM.
Shelby County, a political subdivision of the State of Alabama, petitions this Court for a writ of mandamus directing the Honorable Robert R. Armstrong, Jr., judge of the Circuit Court of Shelby County, to set aside his order transferring the underlying lawsuit to Jefferson Circuit Court and to restore the case to the docket of the Shelby Circuit Court. The writ is granted.
On August 4, 1986, Shelby County and several other plaintiffs filed suit in Shelby County Circuit Court, seeking declaratory and injunctive relief against the City of Birmingham, the mayor of Birmingham, members of the city council of Birmingham, the judge of probate of Shelby County, the Water Works Board of the City of Birmingham, United States Pipe and Foundry Company, Emory Realty Company, United States Steel Corporation, Child Mental Health Services, Inc., A.M. Harper, and Glenn Ireland III. The plaintiffs allege that the City of Birmingham's purported annexation of Shelby County territory, and the ordinances and exercise of municipal authority in conjunction therewith are unlawful and invalid. The plaintiffs also allege that the individual and corporate defendants who petitioned for annexation and whose real property became subject to land use planning and regulation from both the City of Birmingham and the Shelby County Planning Commission are subject to conflicting authorities, and that the circuit court should order these landowners to comply with the Shelby County Planning Commission's regulations. The plaintiffs also seek quo warranto relief pursuant to Ala.Code 1975, § 6-6-590, or, alternatively, § 6-6-591.
Several defendants filed motions to transfer the case to Jefferson County Circuit Court due to a lack of jurisdiction and/or improper venue. The plaintiffs filed venue interrogatories, which were answered by all of the defendants except the Water Works Board of the City of Birmingham. On May 15, 1987, the judge of the Shelby County Circuit Court transferred the case to the Jefferson County Circuit Court, Birmingham Division.
Counsel for defendants relies upon Ex parte City of Birmingham, 507 So. 2d 471 (Ala.1987), wherein this Court held that, in an action against a municipal corporation, venue generally lies in the county which is the situs of the municipal corporation's seat of government. In that case, an action was brought by Blount County and others against the City of Birmingham alone, seeking a judgment declaring invalid certain ordinances by which Birmingham had purported to annex certain property in Blount County. However, the Court did not address whether Ala.Code 1975, § 6-3-2, and Rule 82(b), A.R.Civ.P., or Ala. Code 1975, § 6-3-7, would make venue proper in a county other than the county which is the situs of the municipal corporation's seat of government. This issue is presented in the instant case.
Petitioner argues that venue is proper in Shelby County because an individual who resides in Shelby County is named as a defendant, because foreign and domestic corporations that do business in Shelby County are named as defendants, and because the joinder of the City of Birmingham is ancillary to the joinder of these parties.
If venue in a particular county is proper as to one defendant, then additional claims and parties may be joined as ancillary thereto. Rule 82(c), A.R.Civ.P.
An action against an individual "must be brought in the county where the defendant or any material defendant resides." Rule 82(b), A.R.Civ.P., and Ala.Code 1975, § 6-3-2. Defendant A.M. Harper, an owner of property purportedly annexed into Birmingham, resides in Shelby County.
Alabama Code 1975, § 6-3-7, provides:
Defendant United States Steel Corporation, now known as USX Corporation, is a foreign *527 corporation qualified to do business in Alabama and doing business in Shelby County. Defendant United States Pipe and Foundry Company, is also a foreign corporation qualified to do business in Alabama and doing business in Shelby County. Defendants Emory Realty and Child Mental Health Services are domestic corporations that do business in Shelby County. Defendant Water Works Board of the City of Birmingham did not respond to venue interrogatories, but arguably it is a domestic corporation that does business in Shelby County.
Based upon the foregoing, venue is proper in Shelby County. However, Birmingham argues that venue should still be in Jefferson County because none of the above mentioned defendants is a "material defendant."
"A `material defendant' is `one whose position is antagonistic to that of the plaintiff's because relief is sought against him.'" Ex parte Ford, 431 So. 2d 1194, 1196 (Ala.1983), quoting Alabama Youth Services Board v. Ellis, 350 So. 2d 405, 408 (Ala.1977). A material defendant has also been defined as "a real and bona fide defendant whose interest in the result of the action is adverse to that of the plaintiff with respect to the cause of action against the other defendant." Copeland v. Loeb, 269 Ala. 295, 297, 112 So. 2d 475, 477 (1959).
In the instant case, the interests of the defendant landowners are certainly antagonistic to the interests of Shelby County. Shelby County seeks to prevent the use of property in that county in a manner contrary to its planning and zoning regulations. Since the defendant landowners petitioned and/or consented to have their property annexed into the City of Birmingham, they are obviously aligned with the City of Birmingham and have an interest in the result of the action that is adverse to that of Shelby County.
A writ of mandamus may be granted only when there is a clear showing of error in the trial court to the injury of the petitioner. Ex parte Harrington Manufacturing Co., 414 So. 2d 74 (Ala.1982). We find that venue was proper in Shelby County; thus, the trial court erred in transferring the underlying lawsuit to Jefferson County. The writ of mandamus is granted.
WRIT GRANTED.
TORBERT, C.J., and JONES, BEATTY, HOUSTON and STEAGALL, JJ., concur.
MADDOX and ADAMS, JJ., dissent.
ALMON, J., not sitting.
PER CURIAM.
The City of Birmingham and other defendants argue in their application for rehearing that none of the defendant property owners, with the exception of the City of Birmingham and the Water Works Board of the City of Birmingham, owns property in Shelby County subject to the City of Birmingham's proposed annexation. The defendants assert that, after the City of Birmingham began its annexation proceedings, United States Pipe and Foundry Company and Emory Realty Company sold their property, which was included in the proposed annexation, to the City of Birmingham. At least a 40-acre tract of this property was located in Shelby County. The defendants also assert that neither A.M. Harper, Glen Ireland III, Child Mental Health Services, Inc., nor United States Steel Corporation owns property located in Shelby County that is subject to the City of Birmingham's proposed annexation.
Venue is determined at the time the suit is filed. Ex parte Hawkins, 497 So. 2d 825 (Ala.1986). However, if a defendant whose presence made venue proper as to the entire action at the time of the commencement of the action is subsequently dismissed from the action, the action may be transferred to a proper forum. Rule 82(d)(2), A.R.Civ.P.
Based upon the facts stated in the original complaint in this case, venue was proper in Shelby County with respect to United States Pipe and Foundry Company and Emory Realty Company at the time Shelby County filed its suit, because those two companies owned property in Shelby County *528 that was subject to Birmingham's annexation. There is no evidence presented in the application for rehearing to show that United States Pipe and Foundry and Emory Realty sold their property to the City of Birmingham, nor is there any evidence that these parties have been dismissed from the lawsuit. Thus, even if Harper, Ireland, Child Mental Health Services, and United States Steel Corporation do not own property in Shelby County that is subject to the City of Birmingham's proposed annexation, venue is still proper in Shelby County based upon venue with respect to United States Pipe and Foundry and Emory Realty.
OPINION EXTENDED; APPLICATION OVERRULED.
TORBERT, C.J., and JONES, BEATTY, HOUSTON and STEAGALL, JJ., concur.
MADDOX and ADAMS, JJ., dissent. | September 11, 1987 |
61a68098-46d2-4936-9a29-2b8d65a71dfe | Friedlander v. Hall | 514 So. 2d 914 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 914 (1987)
Jacob M. FRIEDLANDER, et al.
v.
Mary Alyce HALL.
86-458.
Supreme Court of Alabama.
September 11, 1987.
Nathan P. Friedlander of Friedlander & Dunning, Mobile, for appellants.
Lucian Gillis, Jr., of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
SHORES, Justice.
This is an appeal from a judgment in favor of the defendant in a personal injury action brought as a result of a rear-end automobile collision. The plaintiff contends that the trial court erred in denying the motion for new trial and that the trial court improperly charged the jury on the sudden emergency doctrine. We reverse.
On January 2, 1985, Amelia Friedlander, accompanied by her 11-year-old daughter Robin, was driving East on Old Shell Road in Mobile, Alabama. Old Shell Road is a two-lane highway and was relatively congested at the time. The driver of the automobile *915 immediately in front of Mrs. Friedlander intended to make a left turn and brought her vehicle to a stop in order to allow oncoming traffic to clear. Mrs. Friedlander was able to slow her car and come to a complete stop while waiting on the lead car to turn left.
There was one car between Mrs. Friedlander's car and the car being driven by the defendant, Mary Alyce Hall. This car made a right turn in front of Ms. Hall, leaving an unobstructed path between Ms. Hall and Mrs. Friedlander. Ms. Hall testified that at the time it was raining lightly and that she was traveling approximately 30 miles per hour in a 40-mile-per-hour speed zone. Additionally, Ms. Hall stated that she could not see ahead of the vehicle that made the right turn and that because there was sufficient space between the cars, it was not necessary for her to slow down in order to allow the car to complete its right turn. After the vehicle in front of her made the right turn, Ms. Hall said, she was approximately 30 feet behind Mrs. Friedlander; at that point she first saw Mrs. Friedlander stopped in the street. Ms. Hall admitted that, at the time she realized Mrs. Friedlander was stopped in the street, she was going too fast to stop and avoid the collision.
Because she was unable to stop her vehicle or take evasive action, Ms. Hall could not avoid ramming the rear of Mrs. Friedlander's car. Although Ms. Hall was able to slow her car to approximately 15 miles per hour, the impact was of sufficient force to propel Mrs. Friedlander's car into the rear of the vehicle waiting to make a left turn. Repairs to the Friedlander car cost $1852.82.
Amelia and Robin were not immediately taken to a hospital, but were treated at a local hospital emergency room later that same day. There was testimony that Mrs. Friedlander had suffered strains to the cervical and lumbar spines which were related to the accident. Mrs. Friedlander's husband, Jacob, joined in the action, claiming that his wife's personal injuries had caused a change in their marital relationship.
In its oral charge to the jury, the trial court gave the following instruction:
Plaintiff's counsel properly objected to this charge, and after deliberations, the jury returned a verdict in favor of the defendant, Ms. Hall. Mrs. Friedlander appeals from the denial of her motion for new trial, arguing here, as she did below, that the jury verdict was against the great weight and preponderance of the evidence and that the trial court improperly charged the jury on the sudden emergency doctrine.
Mrs. Friedlander does not argue that the instruction given was an incorrect statement of law, but does contend that it was improper for the trial court to give this charge in this case. Although, as a general rule, it is a question for the jury whether an emergency exists, whether it was created by the one seeking to invoke the rule, and whether his conduct under all the circumstances amounts to negligence, Rollins v. Handley, 403 So. 2d 914, 917 (Ala.Civ. App.1980) (citing Clark v. Farmer, 229 Ala. 596, 159 So. 47 (1935); Birmingham Ry., Light & Power Co. v. Fox, 174 Ala. 657, 56 So. 1013 (1911)), there are situations where it would be prejudicial error to instruct a jury as to sudden emergency. Miller v. Dacovich, 355 So. 2d 1109 (Ala.1978).
In order for the sudden emergency doctrine to be applicable, there must be 1) a sudden emergency; and 2) the sudden emergency must not be the fault of the one seeking to invoke the rule. McKinney v. Alabama Power Co., 414 So. 2d 938 (Ala. 1982).
There is no evidence that the right turn was made suddenly or that Mrs. Friedlander made a sudden stop in front of Ms. Hall. To the contrary, it is uncontroverted that all of the other drivers were able to maintain control of their vehicles and operate them according to the appropriate rules of the road. When heavily used municipal *916 streets are involved, more vigilance is required in order to comply with the test of ordinary care under the circumstances. Government Street Lumber Co. v. Ollinger, 18 Ala.App. 518, 94 So. 177 (1922), cert. denied, 208 Ala. 699, 94 So. 922 (1922).
Although Mrs. Friedlander was not waiting at an intersection, we find the language of Glanton v. Huff, 404 So. 2d 11 (Ala.1981), dispositive of this question, and we hold that a motorist operating his vehicle on a municipal street is required to have his vehicle under control so that he does not drive into the rear of a vehicle whose driver has properly and lawfully stopped his vehicle waiting on traffic to clear in order to make a left turn.
From our review of the record, we are unable to detect any evidence to support the contention that this case involved a sudden emergency. There was no unusual or sudden occurrence that a driver on a crowded municipal street should not anticipate or expect in the ordinary course of congested urban travel. Consequently, we are of the opinion that the jury was erroneously instructed on the sudden emergency doctrine.
We are mindful that jury verdicts are presumed to be correct, and that the presumption of correctness is strengthened where the trial court denies a motion for new trial. Guthrie v. McCauley, 376 So. 2d 1373 (Ala.1979). However, having found that the trial court, under the circumstances of this case, committed reversible error by instructing the jury on sudden emergency, we need not address the issue of the trial court's denial of Mrs. Friedlander's motion for new trial on the ground that the verdict was not supported by the evidence.
Therefore, the judgment of the trial court is to be reversed and the cause remanded for a new trial.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | September 11, 1987 |
08e2ba58-e487-456b-a093-40f92314ac68 | Adams v. Farlow | 516 So. 2d 528 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 528 (1987)
Leland C. ADAMS, Jr., et al.
v.
Carl P. FARLOW, et al.
Leland C. ADAMS, Jr., et al.
v.
AMERICAN CAST IRON PIPE COMPANY, et al. (Two Cases)
Leland C. ADAMS, Jr., et al.
v.
Paul W. GREEN, et al.
85-300, 85-448, 85-888 and 85-1032.
Supreme Court of Alabama.
September 18, 1987.
Rehearing Denied November 20, 1987.
*529 W. Eugene Rutledge and Kay S. Kelly, Birmingham, for appellants.
A.J. Noble, Jr. of Burr & Foreman, Birmingham, for appellees.
BEATTY, Justice.
These four cases were consolidated on appeal. They arise from controversies between *530 the two boards that comprise the board of trustees of the trust established by the codicil to the will of John J. Eagan. The two boards are the Board of Operatives and the Board of Management.[1] The res of the trust is the American Cast Iron Pipe Company ("ACIPCo"). In a previous decision arising out of another controversy between these two boards, Farlow v. Adams, 474 So. 2d 53 (Ala.1985), this Court set out a brief explanation of the components of the Eagan trust and ACIPCo, which we quote here in order to provide a backdrop for an understanding of the various bases for the present controversies:
"`The trustees, appointed by this codicil, in accepting the trust and acting hereunder will be trustees both for said employees and said persons requiring the product of said company. It is my will and desire that said trustees in the control of said company, through the control of said common stock, shall be guided by the sole purpose of so managing said company as to enable said American Cast Iron Pipe Company to deliver the company's product to persons, requiring it, at actual cost, which shall be considered the lowest possible price consistent with the maintenance and extension of the company's plant or plants and business and the payment of reasonable salaries and wages to all employees of said company, my object being to insure "service" both to the purchasing public and to labor on the basis of the Golden Rule given by our Lord and Savior Jesus Christ.'"
474 So. 2d at 54-55.
In Farlow v. Adams, this Court held that members of the Operatives could not be fired without cause. We explained:
474 So. 2d at 58.
As the foundation for their various requests for relief in these consolidated cases, the Operatives contend that Management has attempted to ignore and circumvent this Court's decision in Farlow v. Adams, supra, and find other ways to dominate the trust. Additional facts specific to each appeal will be discussed in turn.
The facts pertinent to this appeal are as follows:
In early December 1984, E.E. Langner, ACIPCo's works manager and also a member of Management and the Board of Directors, issued a memorandum addressed to the Operatives concerning the enforcement of Plant Rule 12, which prohibits ACIPCo employees from "quitting work, leaving assigned work area, ... or leaving during working hours without permission from immediate supervisor." In his memorandum to the Operatives, Langner stated the following:
Apparently from the time of this memorandum and up until August 30, 1985, all of the Operatives abided by Plant Rule 12. The Operatives do not dispute Management's contention that the Operatives were never denied permission to leave the plant during their working hours to see their attorney; that no one ever inquired about the Operatives' reason or purpose for going to see their attorney; and that the Operatives were always able to perform their duties as Operatives and as trustees without violating this or other plant rules.
In August 1985, the Operatives learned that ACIPCo had hired, or was planning to hire, temporary contract labor from Manpower, Inc. Because the Operatives were of the opinion that the employment of contract labor was in violation of the Eagan trust, three of the members of the Operatives requested Carl P. Farlow, in his capacity as chairman of the board of trustees, to call a special trustees meeting for the purpose of discussing ACIPCo's use of contract labor. Farlow refused because he did not think that the use of Manpower, Inc., fell within the province of the board of trustees. Farlow also assured these Operatives that no Manpower, Inc., workers would work 40 hours a week if any ACIPCo employee was working less than 40 hours a week.
After Farlow refused to call a special meeting, several Operatives members orally requested the vice chairman of the board of trustees, Leland Adams, to call the *532 meeting. The rules and regulations governing the board of trustees, which are included in the by-laws of ACIPCo as Article VII, provide at Section 3 the procedure for calling a special trustees meeting:
(Emphasis added.)
On August 16, 1985, after Adams also refused to call the meeting, a majority of the Operatives, acting under the above provision, issued a written call for a special trustees meeting to be held on August 27, 1985. When Farlow received his notice of this meeting, he then instructed the secretary of the board of trustees to call a special meeting for August 23, 1985, four days prior to the meeting called by the Operatives. Upon receiving notice of the August 23 meeting, two of the Operatives, Adams and Bradford, went to the secretary, P.W. Green, and asked for an agenda of the meeting called by Farlow. Green explained that there was no agenda but told them that he presumed the purpose of the meeting was to discuss the contract labor issue.
At the August 23 meeting, Farlow told the Operatives that the meeting was called in response to their request for a meeting, and he took the position that the August 27 meeting called by the Operatives was improper because it had not been called in accordance with the by-laws. Farlow's interpretation of the portion of the by-laws quoted supra required the Operatives to submit their request in writing to Adams, the vice-chairman, upon Farlow's refusal to call the meeting. The Operatives disagreed and explained that they were not then prepared to discuss the contract labor issue because, for example, they had not prepared the resolutions they planned to introduce. Farlow told the Operatives that there would not be an August 27 meeting, and that Management would not attend any meeting the Operatives attempted to conduct.
The Operatives assembled on August 27 for the trustees meeting they had called. None of the members of Management were present. Several of the Operatives attempted, but were unable, to find any of the members of Management and were informed that Farlow was away from the plant and that all the others were out of town. The Operatives proceeded with their trustees meeting and passed the following resolution:
"The Board of Trustees does hereby resolve that the use of contract labor, whether provided by an entity engaged in the provision of contract labor as a *533 legal business or otherwise, is contrary to the provisions of the John J. Eagan Trust and is prohibited by the terms and conditions thereof except as to professional services provided by professional persons.
The resolution went on to provide that the prohibition against using contract labor at ACIPCo would also apply to any wholly-owned subsidiaries of ACIPCo as soon as practicable.
On Friday, August 30, 1985, three days after the August 27 meeting, Adams had an appointment scheduled with the Operatives' attorney to prepare the necessary letters to be delivered to Farlow and the other committee members informing them of the above resolution. Early that morning, Adams asked his supervisor, Bert Bowlin, for permission to leave the plant during his working hours to see the Operatives' attorney. According to Adams, Bowlin gave him permission to leave. Bowlin, however, testified that he did not give Adams permission, and that since the December 7, 1984, memorandum (quoted supra), he had required Adams to obtain permission from Langner, the works manager. Adams testified that he did go to Langner's office to see him or one of his assistants about leaving the plant, but that none of them was present. Adams then went to see Glen Hicks, the personnel director, who was in a meeting. Because he was running late for his 8:00 a.m. appointment, Adams did not wait for Hicks and, instead, asked Hicks's secretary to tell him where he was going and that he could be reached there. When Hicks learned that Adams left the plant without obtaining his permission, he reported it to Langner *534 around 9:30 a.m. Langner then checked with Bowlin, Adams's supervisor, to see if he had given Adams permission to leave. Upon learning that Bowlin had not given Adams permission to leave, Langner prepared a written reprimand on Adams that same day.
The following Monday was Labor Day, an ACIPCo holiday, so the "workload meeting" between the Operatives and one or more representatives from the works manager's office, which is regularly scheduled to be held every other Monday, was held at noon on Tuesday, September 5, 1985. At that meeting, Langner presented to each of the Operatives a written memorandum, set out below, concerning a change in the compensation to Operatives members for attending special Operatives meetings:
(Emphasis added.)
Prior to this change, the Operatives did not have to obtain approval in order to be paid for non-scheduled Operatives meetings held before or after their respective regular working hours. The Operatives are paid their "regular shift differential for time charged to Board business during *535 their normal scheduled work shift and hours." They are paid the first shift rate (apparently a higher rate) for time charged to board business in excess of regularly scheduled work hours. According to Langner, the requirement that overtime pay for non-scheduled meetings be authorized was imposed in response to alleged abuses by some of the Operatives, which he had either witnessed or which had been reported to him, resulting in excessive amounts of overtime claimed by the Operatives.
At the conclusion of the September 3 workload meeting, Langner told Adams to report to Langner's office at 1:30 p.m. Adams went to Langner's office at 1:30 p.m. as directed, accompanied by another member of the Operatives. Hicks, the personnel director, was also present. At this meeting, Langner informed Adams that he was being given a writen reprimand for violating Plant Rule 12 on August 30, 1985, by leaving the plant without permission. Langner read the reprimand to Adams but did not give him a copy.
On that same day, September 3, 1985, Farlow wrote Adams a letter in response to Adams's letter informing Farlow of the resolution passed by the Operatives acting as the board of trustees at their August 27 meeting which Management refused to attend. In this letter, set out in pertinent part below, Farlow once again disavowed and disaffirmed the validity of any of the actions taken by the Operatives purportedly acting as the board of trustees at the August 27 meeting, because he contended the meeting was improperly called and a quorum was not present:
(Emphasis added.)
The Operatives contend that the phrase "without proper authority," included in the *536 sentence emphasized above, is in reference to Plant Rule 6, which prohibits "[d]isobedience to proper authority," the minimum penalties for which include: reprimand for a first offense; two-week layoff for a second offense; and discharge for a third offense.
Responding to what it perceived to be threats of punitive actions against them by Management, the Operatives filed a motion in this case on September 16, 1985, seeking a temporary restraining order and temporary and permanent injunctive relief.[2] Specifically, the Operatives asked the trial court to grant the following relief:
By an order dated September 17, 1985, the trial court denied the Operatives' request for a temporary restraining order. Following a ten-day trial and the submission of briefs by both parties, the trial court entered a rather lengthy order on December 6, 1985, denying the Operatives' motion for preliminary injunction.[3] It is from this order that the Operatives appeal.
In Howell Pipeline Co. v. Terra Resources, Inc., 454 So. 2d 1353, 1356 (Ala. 1984), this Court set out a three-pronged *537 test by which the trial court can review an application for a preliminary injunction:
"Double C. Productions, Inc. v. Exposition Enterprises, 404 So. 2d 52, 54 (Ala. 1981). `In measuring the relief sought by a complainant against this standard, the trial court, then, in its discretion and under the individual facts and circumstances of each case, "... may consider and weigh the relative degree of injury or benefit to the respective parties...."' Id., citing Valley Heating, Cooling and Electric Company v. Alabama Gas Corporation, 286 Ala. [79] at 82, 237 So.2d [470] at 472 [(1970)]."
Additionally, as recently recognized by this Court in Marshall Durbin & Co. of Jasper, Inc. v. Jasper Utilities Board, 483 So. 2d 399, 400 (Ala.1986):
"`Furthermore, the law in this State is settled that, on a motion for preliminary injunction, the burden is on complainant to satisfy the court that there is at least a reasonable probability of ultimate success on the merits of the controversy. Postal Telegraph v. City of Mobile, 179 F. 955 (C.C.S.D.Ala. 1909).'
A party appealing from the grant or denial of a motion for a preliminary injunction also bears a heavy burden because a trial court's decision to grant or deny a motion seeking a preliminary injunction will not be disturbed on appeal, absent a gross abuse of discretion. Marshall Durbin & Co. of Jasper, Inc., supra; Howell Pipeline Co., supra. This gross abuse of discretion must be such as to result in manifest injustice unless this Court sets aside the trial court's order.
Having reviewed the record in this case, along with the respective briefs and arguments of counsel for both sets of parties, we cannot say the trial court grossly abused its discretion in denying the Operatives' request for preliminary injunctive relief. Indeed, as to the "permission to leave rule" issue, the "removal of the reprimand" issue, and the "approval of overtime pay for special Operatives' meetings" issue, we agree with and hereby adopt the order of the trial court:
"The evidence has shown that since at least December 7, 1984, the Plaintiffs have been seeking and requesting permission prior to their leaving the plant premises during their working hours to consult with the Board of Operatives' attorney. Until the incident involving Leland C. Adams, Jr. resulting in a written reprimand to him on September 3, 1985, (discussed later herein), the evidence shows that the Plaintiffs had suffered no difficulty, injury or damage as a result of following the permission procedure. There has been no evidence presented that any of the Plaintiffs have been denied permission to leave the plant premises to consult with their attorney on Board of Operatives business or that any of the Defendants have ever demanded to know or tried to learn the reasons it was necessary for the Plaintiffs, or any of them, to meet with their attorney at a particular time. To the contrary, the evidence has shown that *538 Plant Rule 12 ... has been in existence for many years and that the evidence has failed to show that it has been applied unfairly or more restrictively to the Plaintiffs than any other wage employee.
"`Board members will be compensated for time that they are required by the Company to attend committee meetings and investigations, as well as for the regular meeting of the Board on the first Monday of each month whether during regular working hours or not. Pay for special Board meetings not held during regular working hours must be authorized by the Works Manager's office.'
As to the Operatives' request that Management be restrained from interfering with the Operatives' attempts to implement the contract labor resolution passed on August 27, 1985 (quoted supra), we agree with the trial court that the Operatives are not entitled to the issuance of a preliminary injunction as to this matter because they have failed to establish that imminent and irreparable injury will result if the injunction is not issued. However, we do not agree that this claim "fails to show a fair question to raise as to the existence of a right to relief," which is, nevertheless, only one of several factors to be considered. In the portion of its order dealing with the resolution, the trial court stated the following:
(Emphasis added.) Based on our reading of the clear language of Article VII, Section 3, setting forth the procedure for calling a special trustees meeting, we cannot agree with the trial court's preliminary finding that the meeting was not properly called. However, the error of this preliminary finding by the trial court does not compel reversal because of the narrow issue here presented.[4]
Management argues that Article VII, Section 3, requires that when the chairman of the board of trustees refuses to call a special meeting, as he did in the present case, a majority of either board must submit to the vice chairman a written request to call a special meeting, upon which he must refuse or fail to act before a majority of that board may call the meeting themselves. This construction of Section 3 does not comport with the plain language of that provision. As the following pertinent sentences make clear, resort to the vice chairman by a majority of either board is required only in the absence of the chairman or his inability to act:
(Brackets and emphasis added.) The bracketed portion of the second sentence above is sub-disjunctive; that is, applicable only in the event of the second contingency expressed, viz., the chairman's absence or inability to act. Thus, in the present case, where the chairman refused, it was unnecessary for a majority of the Operatives to submit to the vice chairman a written request to call a special meeting before they could make the call themselves.
We reserve opinion as to the correctness of the other preliminary "findings" of the trial court with respect to the validity of the resolution passed by the Operatives in their capacity as the board of trustees. The evidence on these issues should be fully developed upon a consideration of the merits of the Operatives' complaint seeking a preliminary injunction.
Based on the foregoing, the order of the trial court denying the Operatives' motion for preliminary injunction is due to be affirmed.
This case, also an appeal from the denial of a motion for preliminary injunction, involves the validity of the actions taken at a December 4, 1985, meeting of the ACIPCo Board of Directors. Underlying the Operatives' attack on the validity of those actions is their contention that the board of directors was improperly constituted on December *540 4, 1985, and, therefore, that any actions taken by the board during the directors' meeting held that day were without force and effect.
Because the proper composition of the ACIPCo board of directors, both in number and respective positions, is at the heart of the factual inquiry in this case, we set out below the pertinent provisions of the ACIPCo by-laws regarding the number of directors as well as the provisions pertaining to the various seats on the board:
"If the by-laws of the Company permit, there may be elected a Director in *541 addition to those above provided, who shall be the seventeenth Director."
(Emphasis added.)
The recent history of the composition of the ACIPCo board of directors, including the facts pertinent to this controversy, is undisputed and is set out by the trial court in its order, which we incorporate with additional facts:
Thus, eleven directors were in attendance at the December 4 meeting. The action taken by the board at that meeting included the following:
Harbert, after routine business, moved that Farlow be elected to serve exclusively as chairman of the board of directors. All of the directors other than Farlow, Johnson, and Sloan voted in favor of the resolution. Johnson and Sloan, the two directors from the Operatives, voted against it, and Farlow abstained. There were thus eight votes in favor.
Farlow then submitted a written resignation as president of ACIPCo, which stated: "I hereby resign as President of American Cast Iron Pipe Company effective immediately." It was unanimously accepted.
Harbert then moved that P.W. Green be elected president and chief executive officer of the company. The motion was seconded and all present voted in favor of the resolution except Sloan and Johnson, who voted against, and Green, who abstained. There were thus eight votes in favor. Green then submitted his resignation, which read: "I hereby resign as Vice President and Sales Manager and Secretary of American Cast Iron Pipe Company effective immediately." The resignation was *542 unanimously accepted by the Board of Directors.
Harbert then moved to elect Richard Bragdon as secretary of ACIPCo, the motion was seconded, and all present voted in favor, except Johnson and Sloan, who voted against, and Bragdon, who abstained. There were thus eight votes in favor.
Another motion was made, seconded, and adopted by a vote of all present, except Sloan and Johnson, who voted against it, that Green as president of ACIPCo be appointed attorney in fact and agent of ACIPCo to vote all of the shares of capital stock owned by ACIPCo in its wholly-owned subsidiaries, American Valve & Hydrant Manufacturing Company, Specification Rubber Products, Inc., and Kristin Shipping Company.
On December 9, 1985, five days after the above board of directors meeting, the Operatives filed their complaint seeking a temporary restraining order, preliminary and final injunctive relief, and a declaratory judgment. The Operatives' requests for numerous and specific forms of relief were based on their underlying contentions that the December 4 directors' meeting, and the actions taken therein, were invalid in that the board was improperly constituted, that the number of directors had fallen below the minimum stated in the by-laws, that directors Farlow, Green, and Bragdon were disqualified by reason of interest, that a quorum was not present, and that the action taken was not done by a vote of the majority of the board as required by the by-laws. By their complaint, the Operatives requested the following specific relief:
"(i) Declare that Van L. Richey has not been validly appointed as sales manager of ACIPCO and that his name has been improperly certified to the Board of *543 Trustees, all as required by the ACIPCO By-Laws;
By an order entered on December 10, 1985, the trial court denied the Operatives' request for a temporary restraining order, and on January 14, 1986, the trial court entered another order denying their request for a preliminary injunction. In support of its decision to deny the preliminary injunction, the trial court made the following preliminary findings:
"A Board of Directors may continue to transact the business of the corporation even though the number of directors is reduced below the minimum required by the by-laws provided that the number of *544 directors does not fall below a quorum. Nevertheless, in this situation there were thirteen authorized directors of ACIPCO, and since Dr. Fargason's retirement, there have been twelve acting directors, which is the minimum number stated in the by-laws. Thus, with eleven directors present at the meeting, a quorum was present. Although there are situations where a director may be disqualified from voting by reason of personal pecuniary interests, this was not the case here. Defendants Farlow, Green, and Bragdon were not disqualified and could have voted for themselves. Even if Mr. Farlow had been disqualified from voting for himself, and Mr. Green had been disqualified from voting for himself, and Mr. Bragdon had been disqualified from voting for himself, each of them still received more votes than a majority of the then authorized directors.
It is from the above order that the Operatives appeal.
As stated, supra, in appeal 85-300, a party appealing from the denial of a motion for preliminary injunctive relief has the burden of showing that in denying that motion, the trial court grossly abused its discretion. This the Operatives have not done. What they have done is argue legal issues that bear strictly on the merits of the Operatives' claims. The Operatives open the argument portion of their brief in this appeal by stating the question for review thusly:
The above statement, we respectfully note, is not a correct assessment of the question presented to this Court by this appeal. At the conclusion of their argument in this case, the Operatives ask this Court to:
From our review of the record in this case, however, it appears that the Operatives have not yet been denied, on the merits, their requests for declaratory and permanent affirmative injunctive relief. While the trial court made certain preliminary findings, it did so only upon consideration of the Operatives' motion for preliminary injunctive relief; by express language in the trial court's order, only that portion of the Operatives' requested relief was denied. Thus, the merits of the legal issues argued by the Operatives are not yet ripe for review.
We recognize that by their arguments, the Operatives are attempting to establish as erroneous the trial court's finding that they "have failed to show a fair question as to the existence of a right to relief." However, this factor is but one of three that the trial court must consider in deciding whether to grant or deny a request for preliminary injunctive relief. Having reviewed the record in this case and having considered the arguments made by each side, we conclude that the Operatives have failed to establish that the trial court's denial of their request for a preliminary injunction amounted to a gross abuse of discretion.
The trial court's preliminary findings comport with a reasonable reading of the ACIPCo by-laws as they pertain to the composition and election of the board of directors and the circumstances under which that board is empowered to act. Furthermore, the evidence in this case supports the trial court's finding that denying the Operatives' motion for a preliminary injunction would not result in imminent and irreparable injury to the Operatives. The Operatives fail to point to any evidence of record that can establish the imminent and irreparable harm they will suffer as a consequence of the denial of their preliminary injunction motion, other than their allegation that Management will continue to have unbridled control over ACIPCo, the entire res of the Eagan trust. Moreover, the record clearly supports the trial court's finding that, in weighing the relative degree of injury or benefit to the respective parties, "ACIPCO and the other defendants would suffer greater injury and hardship than would be sustained by plaintiffs [Operatives]." See Double C. Productions, Inc. v. Exposition Enterprises, 404 So. 2d 52 (Ala.1981).
To preliminarily grant the relief requested by the Operatives would require a complete dismantling of the ACIPCo board of directors, divesting its members of all power, thereby drawing into question the validity of the actions already taken by that Board. It would further leave the company without a president, a secretary, or a sales manager. The effect of granting the Operatives' relief preliminarily could have far-reaching consequences in terms of the vital, day-to-day operations of the company. Clearly then, maintenance of the status quo, pending a final determination of the Operatives' claims, on the merits, is the least injurious to ACIPCo itself and those who benefit from its uninterrupted operation, and, supposedly, the protection and preservation of ACIPCo is the aim of each of the respective parties. The status quo in this case is preserved by not granting the Operatives' motion for preliminary afirmative injunctive relief.
It bears repeating that the issue before us here is the correctness of the order denying the preliminary injunction; "we are not reviewing a final judgment on a hearing of the case on its merits." Howell Pipeline Co v. Terra Resources, supra, 454 So. 2d at 1358. We hold that the trial court did not abuse its discretion in refusing to grant the Operatives' request for a preliminary injunction. Therefore, the judgment below is due to be affirmed.
At the outset, we note that Management has filed motions to strike the Operatives' brief and reply brief and to dismiss the appeal in this case. The grounds alleged *546 concern the inclusion by the Operatives of quotes from and references to the affidavit of James Whitehead, which was not included in the record of this appeal. After filing their brief with this Court, the Operatives filed a motion in the trial court to correct and supplement the record in this case to include the Whitehead affidavit. Following a hearing, the trial court denied the Operatives' motion. For that reason, Management's motion to strike is due to be granted, but only as to that portion of the Operatives' briefs in which references to or quotes from the Whitehead affidavit are made.
On January 27, 1986, the Operatives and Management, as trustees, met for the annual meeting of the ACIPCo board of trustees. At this meeting, the respective boards cast their collective vote for or against a slate of individuals nominated for positions on the ACIPCo board of directors. Management nominated and voted in favor of each of the following persons: P.W. Green, president; V.L. Richey, sales manager; R.M. Bragdon, vice president in charge of engineering; E.E. Langner, vice president and works manager; J.P. Doughty, treasurer; Nick Johnson, a member of the Operatives; James Sloan, a member of the Operatives; J.A. Bragan, a member of the clerical forces of the company; Dr. J.W. Reid, an employee from the company at large; C.P. Farlow, chairman of the board of directors; and W.E. Snow, technical director. Each of these persons was an officer or employee of the company. Except for Nick Johnson, James Sloan, and J.A. Bragan, the Operatives voted against each of these persons.
Management nominated and voted in favor of John M. Harbert III, chairman of the board of the Harbert Corporation, to be the director to represent the buying public, and W.R. Eagan, the son of John J. Eagan, to be the director to represent the religious, social, and educational life of the country. Operatives voted against Harbert and Eagan.
Management also nominated Dr. Thomas A. Bartlett, chancellor of the University of Alabama System, and Wallace D. Malone, Jr., chairman and chief executive officer of Southtrust Corporation, to be outside directors of the company. Operatives voted against both of these men. Because the Operatives and Management failed to agree on all of the individuals nominated to the board of directors, pursuant to the following provision in the rules and regulations of the board of trustees found in Section 12 of Article VII of the ACIPCo by-laws, Management directed R.M. Bragdon, as secretary of the board of trustees, to refer the questions in dispute regarding the election of directors to the board of directors for final decision:
By letter dated January 30, 1986, directed to all of the ACIPCo directors, Bragdon referred the election questions to the directors for final decision.
Although the Operatives contend that, besides those referred by Management to the board of directors, disputes over additional questions arose at the January 27, 1980, board of trustees meeting (and thus the list of those referred by Management to the directors for final decision was incomplete), there is nothing in the record *547 indicating that the Operatives sought to refer those questions themselves, even though the above-quoted provision gives "[e]ither the Board of Management or the Board of Operatives" the right to direct the secretary to refer a disputed question to the directors.
In further pursuance of the above-quoted provision of the ACIPCo by-laws, Management filed its petition with "the presiding judge of the court having jurisdiction over this trust," seeking the appointment of "an attorney authorized to practice law in Birmingham, Alabama, who is not a member of either the Board of Operatives or the Board of Management," to preside over "[a]ny meeting of the members of the Board of Directors held for the purpose of deciding" the election questions in dispute referred to the directors by Management. Following the mandate of this Court's decision in Ex parte Nick Johnson, 481 So. 2d 353, 358 (Ala.1985), Management made the Operatives parties to the proceeding, giving them "notice and an opportunity to appear and participate in the appointment of an attorney provided for in such Rules and Regulations."
At the first scheduled hearing on the petition for appointment on March 10, 1986, the Operatives appeared and filed three motions: a motion to stay, a motion to dismiss, and a motion for summary judgment. The motions to stay and dismiss were denied, and the hearing on the petition for appointment was continued. Following a hearing on April 18, 1986, Judge John N. Bryan, Jr., the presiding judge of the Tenth Judicial Circuit, entered an order dated April 22, 1986, appointing the Honorable J.N. Holt to preside over the ACIPCo board of directors meeting to decide the questions in dispute which had been referred to them. As an aid in understanding the posture of this appeal, Judge Bryan's order is set out in its entirety below:
"Upon receipt of a petition to appoint attorney to preside over a meeting of the Board of Directors of American Cast Iron Pipe Company, with due notice being given to the respondents of such petition, to set same for hearing. At such hearing, said respondents to be granted the right to participate and the *548 right to be heard on who would be appointed as the attorney to preside over the meeting of the said Board of Directors. I view this to be the sole duty and obligation placed on the undersigned in his capacity and office of presiding judge of this circuit. I still view my function to be principally a ministerial duty coupled with a judicial duty to see that notice of the petition and hearing on said petition be given to each of the party respondents.
The Operatives raise a number of issues by their appeal. Nevertheless, we must first consider the parameters of Judge Bryan's "authority" in this case to consider many of these issues interjected by the Operatives as affirmative defenses to Management's petition for appointment. We agree with Judge Bryan that his duty to appoint a presiding attorney is ministerial, provided that it is undisputed and uncontroverted that all of the prerequisites to such an appointment have been met. That is, all of the conditions set out in Article VII, Section 12, of the ACIPCo *549 by-laws for such an appointment are present,[5] as well as the prerequisite mandated by this Court in Ex parte Johnson, supra, requiring that notice and opportunity to be heard be given to all necessary parties. If there are not factual disputes as to whether these prerequisites are met, the presiding judge's duty is purely ministerial and he has no discretion in making the appointment. Under these circumstances, he may, by way of mandamus, be compelled to perform his duty, or, conversely, be prevented from performing that duty where it is undisputed that one or more of the above prerequisites have not been met. See Ex parte Johnson, supra, and the dissenting opinion at 481 So. 2d 360-61.
It is only when there are factual issues as to whether all of the prerequisites to such an appointment have been met that the presiding judge's function becomes at least quasi-judicial. In that instance, the proceedings become adversarial, and by "deciding" the factual issues, and thereupon determining whether the appointment should be made, the presiding judge assumes the role of factfinder. Under these circumstances, the presiding judge's "decision" to appoint an attorney or not is one that would support an appeal. However, where there are no such factual issues to be decided, mandamus is the appropriate method of review.
In either event, upon the filing of only a petition for the appointment of an attorney under the language of the by-laws, supra, the purview of the presiding judge's power or "jurisdiction" is not in any way broadened to permit him to consider other matters besides those discussed above pertaining to the prerequisites for such an appointment. In other words, in the absence of a separate complaint filed invoking the full jurisdiction of the circuit court, it would be inappropriate for either party to present to the presiding judge matters pertaining to, for example, the merits of the reasons underlying the disputes between the Operatives and Management which necessitated resolution by the board of directors and therefore the petition for the appointment of a presiding attorney. Nor would it be appropriate, under a bare petition for appointment, for either party to present arguments to the presiding judge which, if accepted, would serve to invalidate the provision of the by-laws giving him the power to appoint an attorney to preside. Thus, Judge Bryan properly declined to rule on the issues pertaining to matters described above raised by the Operatives in response to Management's petition for appointment. (See discussion ante.)
In this case, the Operatives responded to the petition filed by Management with an answer in which they claimed, among other things, that Management (petitioners) "failed to comply with the By-laws of [ACIPCo] as required by the rules and regulations of the Board of Trustees and the decision in Moore v. Hardin." They further claimed that "[t]he questions to be considered by the Board of Directors have been improperly certified by the secretary of the Board of Trustees to the Board of Directors." The record in this case clearly establishes otherwise, and, therefore, the presiding judge's decision to appoint an attorney is due to be affirmed.
By their answer, the Operatives also sought to prevent the appointment by interjecting a number of other matters. They claimed that Management is estopped from petitioning for an appointment because "they have already filed two prior actions which are still pending in this Court requesting appointment of a Birmingham attorney *550 to preside over a meeting of the American Cast Iron Pipe Company Board of Directors and have obtained the relief requested, but have failed and refused to exercise such relief and have abandoned those actions without pursuing or concluding the same or using the relief granted."
It is undisputed that the two prior petitions referred to above were filed as a result of prior disputes between the Operatives and Management. It may very well be that some of the prior disputes overlap with those that arose during the January 27, 1986, meeting of the board of trustees of ACIPCo. Nevertheless, we fail to perceive how filing this petition, in addition to the previous petitions, "has probably injuriously affected substantial rights" of the Operatives. Rule 45, A.R.App.P. Indeed, had Management sought merely to make use of an appointment it had already obtained through prior petitions, it is likely that the Operatives would now be complaining that, because a subsequent meeting of the trustees was held out of which new disputes arose, another petition for appointment is necessary. On these facts, we find the Operatives' estoppel argument to be without merit.
The Operatives also sought to prevent the appointment essentially by attacking the validity of Article VII, Section 12, of the ACIPCO by-laws insofar as it allows the board of directors to resolve disputes between the Operatives and Management. Specifically, the Operatives alleged:
The merits of the issues raised by these allegations, however, are the subject of two other separate proceedings: one has been filed in Georgia seeking to challenge the change that was made in the Eagan codicil in 1924 at the request of Eagan's executors when the will was probated in Georgia in Eagan v. Moore, Case No. 61106 (Super.Ct., Fulton Co., Ga., December 15, 1924). (The codicil originally provided that tie votes between the Operatives and Management were to be resolved by a majority vote of the trustees presumably voting individually rather than each board casting one collective vote.) The other is a proceeding under Rule 60(b)(6), A.R.Civ.P., seeking to set aside the 1942 circuit court decree in Moore v. Hardin, Case No. 53715 (10th Jud.Cir. of Ala., Equity, 1942), approving the rules and regulations submitted by the 1942 ACIPCo board of trustees (which incorporated the above change), and thereby finding that the trustees had the power under the Eagan codicil to make such rules and regulations to govern themselves as well as subsequent trustees. (The Operatives' appeal from the denial of this Rule 60(b) motion is consolidated herewith and is discussed ante.) Thus, not only was it improper for the Operatives to raise these matters in this proceeding (brought simply to have an attorney appointed) because they were the subject of other separate actions (see Code of 1975, § 6-5-440), but also the trial court was correct to follow the ACIPCo rules and regulations empowering it to appoint an attorney under the facts of this case. Until the Operatives succeed in their attempts to set aside decisions upholding these rules, the trial court is duty bound to follow those decisions.
Based on the foregoing, the order below is due to be affirmed.
On February 21, 1986, the Operatives filed a motion entitled "Motion Under Rule 60, Alabama Rules of Civil Procedure For Relief From Judgment And To Declare Judgment Void And For Preliminary Injunction." By that motion, the Operatives sought to set aside and/or obtain relief from a decree entered on April 6, 1942, in the case of Moore v. Hardin, Case No. 53715 (10th Jud.Cir. of Ala., Equity, 1942).
The bill of complaint filed in Moore v. Hardin by the ACIPCo board of trustees in 1942 named as respondents 12 ACIPCo employees, both white and black, employed in each of the various departments of ACIPCo, and alleged that all 1,500 ACIPCo employees could not be made respondents "without great inconvenience, ... expense, and ... oppressive delays," and further alleged that the "interest of all and each of said [ACIPCo] employees ... in the subject matter of this suit is the same, and the failure to make other employees parties to this cause will not adversely affect any of the rights of any of said employees as such employees if a proper representation of employees be made parties hereto." After generally averring the origin, history, and composition of the ACIPCo board of trustees, the trustees alleged that their number "is comparatively large," and that the individual members changed from time to time, "especially ... the members of the Board of Operatives, who are elected by the employees of the Company." The trustees, therefore, believed that they needed a set of rules and regulations for guidance in performing their duties as trustees. In accord with that belief, the 1942 trustees, predecessors to the parties herein, adopted a set of rules and regulations at the February 1942 board of trustees meeting, of which, by their complaint, they sought court approval. Specifically, the trustees sought instructions from the court as to their administration of the trust and a declaration of their rights, particularly as to
The trustees also asked the court to decree that the 12 employees named respondents represented the interests of all ACIPCo employees.
Each of the respondents individually executed a joint acceptance of service on April 2, 1942, stating as follows:
An answer was also filed by Smyer & Smyer, as solicitors for respondents; that answer admitted certain of the allegations of the complaint and neither admitted nor denied certain others. The respondents also joined with the complainants in asking for instructions and directions as to the proper administration of the trust, and put in issue the question of whether or not the trustees have the right and authority to adopt reasonable rules and regulations governing the conduct of the trust, and the action of the trustees and their successors in the management and conduct of the trust.
Under the rules of procedure and practice in force at that time, the cause was submitted on the bill of complaint and exhibits, the answer, and the testimony of witnesses whose testimony had been taken down by a commissioner and submitted in writing. Based on this submission, the trial court entered a lengthy order in which it found, inter alia, that the 12 employees named as respondents were sufficiently representative of all classes of ACIPCo employees, and that it was, therefore, unnecessary *552 to make any other employees respondents to the cause. The court further found that it was desirable, and, in fact, necessary to the proper operation of the Eagan plan for the trustees to have suitable rules and regulations for the government of the board of trustees and that the trustees had the "right and authority" to adopt such rules and regulations. The court then specifically decreed that:
No appeal was taken from this order, and the trustees have been governed by the rules and regulations approved therein since April 6, 1942. By their Rule 60(b) motion, the Operatives sought to have this 1942 order set aside and declared void, alleging as grounds the following:
By order dated March 7, 1986, the trial court denied the Operatives' request for a preliminary injunction. Then, on May 29, 1986, the trial court entered an order designated an "Order Denying Preliminary Injunction on the Merits." The substance of this order, however, deals exclusively with the merits of the Operatives' request for Rule 60(b) relief; within the body of the order, there is no discussion whatsoever of the criteria applicable to motions for preliminary injunctions nor of whether the Operatives are entitled to preliminary injunctive relief. In its order, the trial court discussed only the merits of the grounds alleged by the Operatives in support of their Rule 60(b) motion, and thereby denied that motion. The parties have so construed this order in their respective briefs and arguments to this court. Therefore, despite its denomination and the language of the mandate at the end, we treat this order according to its substance rather than its form and consider it as an adjudication (i.e., a denial) of the Operatives' Rule 60(b) motion.
Management correctly states the standard of review applicable to a trial court's decision to grant or deny a Rule 60(b) motion for relief from judgment:
Ex parte Dowling, 477 So. 2d 400, 402-03 (Ala.1984). Having reviewed the record in this case, along with the respective arguments of the parties and the applicable authorities, we cannot say the trial court abused its discretion in denying the Operatives' motion to set aside a judgment entered almost 44 years ago. Indeed, under Alabama law, the only ground that can be asserted to set aside a 44-year-old judgment is that the judgment is void on its face. See Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184 (1907). However, a "judgment cannot be void when the Court has *553 jurisdiction of the parties and the subject matter." Raine v. First Western Bank, 362 So. 2d 846, 849 (Ala.1978). The Operatives contend that the court in Moore v. Hardin, supra, had neither subject matter jurisdiction nor jurisdiction of all the necessary parties. Specifically, they contend the judgment is void because: (1) no guardian ad litem was appointed to represent minor beneficiaries and absent beneficiaries and trustees; (2) the necessary parties were not before the court; and (3) there was no case or controversy. As to these three reasons, the trial court held as follows:
"`As a general principle when a trustee is in reasonable doubt as to the extent of his powers or as to the proper manner in which to proceed under the trust, he may apply to a court of equity, which will interpret the trust instrument when necessary and when it is ambiguous in order to give him directions without other equity appearing in the bill.'
"In Bogert, The Law of Trusts & Trustees, § 559 (2d Rev.1980), the following is provided:
"`Equity has jurisdiction over all matters relating to trust property, and in the execution and administration of the trust, in all cases of doubt as to their rights and liabilities and what their conduct should be, trustees are entitled to and should seek instruction and direction from the court.'
"In Ex parte Nick Johnson, [481 So. 2d 353 (Ala.1985)], ACIPCO filed a petition in the Tenth Judicial Circuit requesting the Presiding Judge to appoint an attorney to preside over the meeting of the Board of Directors of ACIPCO as provided for in the rules and regulations quoted in this opinion. The Court appointed an attorney to preside over the meeting without notice having been given to any other party. Three days later, members of the Board of Operatives filed a motion to vacate the appointment. When this motion was denied, the Board of Operatives filed a petition for writ of mandamus with the Supreme Court of Alabama seeking to require the circuit court to vacate the appointment. The Supreme Court granted the writ, but only on the ground that the members of the Board of Operatives were entitled to reasonable notice and an opportunity to be heard in opposition to the application. The Supreme Court there stated:
"`We do not agree with the petitioners' contention that the court below lacked subject matter jurisdiction. As we view the matter, the court acquired jurisdiction in the 1942 declaratory judgment action and, by approving and adopting the rules and regulations of the Board of Trustees, it retained jurisdiction over the trust, the corpus of which is all located in Jefferson County....'
"Equity Rule 30 provided in part as follows:
"`When parties are numerous, court may proceed, having before it parties to represent adverse interests. When the parties having vested interest in real or personal property are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court, in its discretion, may dispense with the making of all of *554 them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiff and the defendant in the suit. But in such cases the decree shall be without prejudice to the rights of the absent parties in that they may claim their shares of any funds in court, or if paid out by order of court, may recover their shares from parties to whom such funds have been so paid.'
"Similarly, Title 7, Section 128, Alabama Code 1958, provided:
"`In equity of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; if the consent of any one who should have been joined as a plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the bill of complaint, and when the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.'
We agree with the trial court that requirements of both personal and subject matter jurisdiction were met in this case.
With respect to the Operatives' contention that necessary parties (including a guardian ad litem representing minor and absent beneficiaries and trustees) were not before the court, we point out that this issue of the sufficiency of naming only 12 employees as respondents was specifically adjudicated by the trial court in 1942. The issue was raised in the petition by the petitioners, and the trial court ruled as follows:
It is "well-settled that the denial of a 60(b) motion does not bring up for review on appeal the correctness of the judgment which the movant seeks to set aside, but is limited to deciding the correctness of the order from which he appeals." (Emphasis added.) Raine v. First Western Bank, 362 So. 2d at 848. Accordingly, the issue of whether the named respondents sufficiently represented the interests of those whose interests the Operatives now claim were not represented, is not properly reviewable in these proceedings. On their face, the 1942 proceedings disclose that the court acquired personal jurisdiction over those employees named respondents; the document evidencing service of process is valid on its face.
Furthermore, we agree with and adopt the trial court's order determining that the *555 equity court had subject matter jurisdiction over the petition filed in 1942. Additional authority for that holding includes the following:
Bogert, The Law of Trusts & Trustees, § 559 (Rev.2d ed. 1980):
Gilmer v. Gilmer, 245 Ala. 450, 453-54, 17 So. 2d 529, 531 (1944):
Collins v. Morgan County National Bank, 226 Ala. 376, 379, 147 So. 161, 163 (1933), quoting 1 Pom.Eq., § 352:
The Operatives also claim that the 1942 decree is due to be set aside on account of fraud. Under Rule 60(b)(3), motions to set aside a judgment because of "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party" must be brought "not more than four months after the judgment, order, or proceeding was entered or taken." Rule 60(b), however, goes on to provide that:
Clearly, even under § 6-2-3, Code of 1975, the Operatives' claim for "fraud upon the court" is barred because, without question, more than two years prior to their filing of this action, the Operatives knew or should have known of the facts they alleged constituted fraud. This is especially true of the Operatives' claim that in 1942 the petitioners misrepresented to the court that the copy of Mr. Eagan's codicil attached to the bill of complaint was as Mr. Eagan wrote it. In other words, the Operatives contend that it was fraud upon the court not to specifically aver that modifications to the codicil had been made when the will was probated in Georgia in 1924. Eagan v. Moore, supra. We think that by using reasonable diligence, the Operatives could have discovered this alleged fraudulent omission far sooner than 43 years after the filing of the petition by the trustees in 1942.
In further support of their fraud claim, the Operatives offered the affidavit of James Whitehead, who was one of the 12 respondent/employees in Moore v. Hardin, supra. In his affidavit, Whitehead states the following:
"... I learned that there was going to be an opening in the company's `YMCA Building.' ... This job which I was interested in, in the YMCA Building was a white collar job. ... I was very interested *556 in moving from the No. 2 ramming station in the monocast department to this white collar position in the YMCA Building and so I applied for the YMCA job opening.
First of all, Whitehead's affidavit does not support the Operatives' claim for fraud on the court. See Duncan v. Johnson, 338 So. 2d 1243 (Ala.1976); Bolden v. Sloss-Sheffield Steel & Iron Co., 215 Ala. 334, 110 So. 574 (1925). Rather, if these facts establish anything, it would be only that a fraud was perpetrated upon one of the respondents, not upon the court, and such a fraud claim falls under Rule 60(b)(3), which must be brought within four months after judgment is entered. Furthermore, even if these facts constituted a fraud upon the court, that claim is clearly barred by § 6-2-3, supra, because the fact of the purported fraud could have been readily discovered by Whitehead had he read the acceptance of service at the time he signed it on April 2, 1942. See Sharpe v. Crook Realty Co., 508 So. 2d 262 (Ala.1987); Gonzales v. U-J Chevrolet Co., 451 So. 2d 244 (Ala.1984); Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala.1983); Sexton v. Liberty National Life Ins. Co., 405 So. 2d 18 (Ala.1981); Seybold v. Magnolia Land Co., 376 So. 2d 1083 (Ala.1979). See also Myers v. Geneva Life Ins. Co., 495 So. 2d 532 (Ala.1986).
The Operatives also attempted to have the 1942 judgment set aside because, at that time, the trust was racially discriminatory. We find the reasoning of the trial court on this issue to be correct and herewith adopt that portion of the trial court's order set out below:
"`... The Board of Operatives will continue to operate and to carry out its functions as an integral part of the Eagan plan with its members serving as joint stockholders and co-trustees under the Eagan codicil as in the past, subject, however, to the eliminating of the racial restrictions on its members. The court further finds that upon the *557 elimination of the racial restriction on membership to the Board of Operatives, the continued and separate existence of the Advisory Auxilliary Board composed of negro employees only and elected by negro employees only would be unnecessary and the court holds that the continuation of such separate Auxilliary Board would also constitute a violation of Title VII. Therefore, the Auxilliary Board must be abolished simultaneously with the elimination of the racial restriction on membership of the Board of Operatives.
"`The elimination of the racial restriction on the Board of Operatives, together with disestablishment of the separate Auxilliary Board will, in the opinion of the court, provide all employees of the company an equal opportunity regardless of the race or color to vote for representatives on the Board of Operatives and to serve on the Board of Operatives. Furthermore, in the future, the members of the Board of Operatives, elected and serving without regard to race or color, will be able to appoint all members of the standing committees and special committees of the Board of Operatives without being in violation of the provisions of Title VII.'
"`The Court feels that it should not, and it will not, engage in a presumption that employees elected from fair and properly drawn electoral districts, will not fairly represent the interest and rights of employees of another race or color and faithfully serve as trustees under Mr. Eagan's will. ...'
Finally, the Operatives argue in effect that the totality of their arguments justifies granting them relief from the 1942 judgment under Rule 60(b)(6). They contend that the effect of the 1942 decree frustrates Mr. Eagan's basic intent in that it allows Management trustees to assume "absolute and unbridled control over the trust estate." Farlow v. Adams, 474 So. 2d at 58.
Although the trial court did not specifically address the Operatives' Rule 60(b)(6) claim, we agree with Management that the Operatives have not demonstrated compelling and extraordinary circumstances entitling them to Rule 60(b)(6) relief. Furthermore, a Rule 60(b)(6) motion must be based on some reason other than those stated in Rule 60(b)(1) through (5), and there is the additional requirement that a Rule 60(b)(6) motion be brought within a "reasonable time" after entry of judgment. As explained by the Seventh Circuit in its discussion of the "reasonable time" requirement of Rule 60(b) in Planet Corp. v. Sullivan, 702 F.2d 123, 126 (7th Cir.1983), "[w]hat constitutes `reasonable time' depends on the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability to learn earlier of the grounds relied upon, and prejudice to other parties." (Quoting Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir.1981)). (Emphasis added.)
It clearly appears that if the rules and regulations approved in the 1942 decree permitted the Management to exercise "absolute and unbridled" control over the trust estate, that result should have been evident to the Operatives much sooner than almost 43 years later. Accordingly, we hold that *558 the Operatives' Rule 60(b)(6) motion is untimely and, therefore, the trial court did not abuse its discretion in denying the motion.
Based on the foregoing, the judgments below are due to be, and they hereby are, affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and HOUSTON, JJ., concur.
[1] In their respective briefs in each of these cases, the appellants and appellees have denominated each other as "Board of Operatives" and "Board of Management." We follow that denomination herein, referring to each as "Operatives" and "Management."
[2] The Board of Operatives had previously filed a complaint on February 2, 1985, seeking a temporary restraining order and various forms of injunctive and declaratory relief. On February 21, 1985, the trial court entered a consent order indicating that, as to the matters in which the Operatives sought preliminary injunctive relief, the parties had reached an agreement obviating the necessity for any further consideration thereon. Based on that agreement, the court ordered that no preliminary injunction shall issue. Except for the denial of Management's motion to strike the February 2 complaint and their subsequent answer to that complaint, nothing further transpired in the case until the Operatives filed their September 16, 1985, motion for a temporary restraining order and injunctive relief. It is from the order denying this September 16 motion that the Operatives appeal.
[3] By its order, the trial court denied only the Operatives' motion for preliminary injunction, apparently reserving their request for permanent injunctive relief for consideration at a later date.
[4] We recognize that the validity vel non of the resolution has not been determined, as a matter of law, by this order denying the Operatives' request for preliminary injunctive relief, and that its validity will be determined by a trial on the merits of the Operatives' request for a permanent injunction. Nevertheless, because the parties argue this preliminary finding by the trial court, among others, we deem it appropriate to address the proper construction of this specific provision setting out the procedure for calling a special trustees meeting.
[5] Under this section of the ACIPCo by-laws, the following are, in effect, preconditions to the appointment of an attorney by the presiding judge:
(1) Disputes between the two units (Management and Operatives) of the board of trustees;
(2) Direction to the secretary by either unit to refer the dispute(s) to the board of directors for resolution;
(3) Such referral made in writing by the secretary to the board of directors; and
(4) Petition brought by either unit, to the presiding judge of the court having jurisdiction of the Eagan trust, requesting the appointment of an attorney who is (a) authorized to practice law in Birmingham, Alabama, and (b) not a member of either unit of the board of trustees. | September 18, 1987 |
cb6c5171-f0fa-4716-b77f-d9601f89dd46 | Wiberg v. Sadoughian | 514 So. 2d 940 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 940 (1987)
Clinton E. WIBERG, Individually, and Clinton E. Wiberg and Dorothea E. Wiberg, Executors of the Estate of Kathryn F. Wiberg, Deceased
v.
Ali Raymond SADOUGHIAN, a minor, By and Through his next friend, Penny Wiberg SADOUGHIAN, et al.
86-56.
Supreme Court of Alabama.
September 18, 1987.
S.P. Keith, Jr., of Keith, Keith & Keith, Birmingham, for appellants.
Lewis W. Page, Jr., and Lynn Baxley Ault, of Lange, Simpson, Robinson & Somerville, Birmingham, for appellees.
STEAGALL, Justice.
Kathryn F. Wiberg died testate on June 11, 1984. Under the terms of her will, Mrs. Wiberg bequeathed the residue of her estate as follows: two-sixths to her granddaughter, Penny Wiberg Sadoughian, to be invested as an educational fund for Ali Sadoughian and Meli Sadoughian; two-sixths to her grandson, Raymond Knoll Wiberg, to be invested as an educational fund *941 for Raymond Victor Wiberg and Eric Wiberg; one-sixth to her brother-in-law, Clinton E. Wiberg; and one-sixth to Clinton's wife, Dorothea E. Wiberg. The will named Clinton E. Wiberg and Dorothea E. Wiberg as co-executors. The will was admitted to probate in Jefferson County, and letters testamentary were granted to Clinton E. Wiberg and Dorothea E. Wiberg. Upon the petition of Penny Wiberg Sadoughian, the administration of Mrs. Wiberg's estate was removed from probate court to circuit court.
On May 14, 1985, the plaintiffs, who are the grandchildren and minor great-grandchildren of Kathryn F. Wiberg named as beneficiaries in her will, filed a complaint for declaratory judgment in the Circuit Court of Jefferson County. Named as defendants were Clinton E. Wiberg, individually, and Clinton E. Wiberg and Dorothea E. Wiberg, as executors of the estate of Kathryn F. Wiberg. The complaint alleged that, prior to her death, Mrs. Wiberg had deposited funds into certificates of deposit in the names of "Kathryn F. Wiberg or Clinton E. Wiberg," with right of survivorship. The complaint also alleged that, following Mrs. Wiberg's death, the certificates of deposit that had been in the names of Kathryn F. Wiberg or Clinton E. Wiberg were reissued in the names of Clinton E. Wiberg or Dorothea E. Wiberg, as individuals, and that the defendants had indicated that those funds were not part of the estate of Kathryn F. Wiberg. The plaintiffs sought to have the proceeds of the certificates of deposit placed in the estate of Kathryn F. Wiberg to be distributed according to the terms of her will. The plaintiffs alleged that Clinton E. Wiberg had exerted undue influence over Kathryn F. Wiberg to obtain joint ownership of the certificates of deposit and that Kathryn F. Wiberg signed the ownership cards for the certificates of deposit through mistake and misunderstanding.
The case was tried to a jury, which found in favor of the plaintiffs. The trial court entered judgment on August 15, 1986, and ordered that the certificate of deposit funds be placed in the account of the estate. On September 2, 1986, the plaintiffs filed a motion requesting that attorney fees and expenses be charged to the common fund that was to be paid into court under the terms of the judgment, as provided by Code 1975, § 34-3-60. The trial court ruled that the attorney fees for the plaintiffs were to be paid from the funds in the estate of Kathryn F. Wiberg. Following a hearing to establish a reasonable attorney fee, the court awarded the plaintiffs $20,045.67 for attorney fees plus $2,012.25 for expenses.
On September 10, 1986, the defendants filed a "Motion to Set Judgment Aside or Motion for New Trial," which the court denied. Before denying the motion, the court had granted the plaintiffs' motion to strike paragraphs 5, 6, 7, 8, 9, and 12, along with the affidavits of three jurors, from the defendants'"Motion to Set Judgment Aside or Motion for New Trial."
The defendants appeal, claiming that: (1) the trial court erred in awarding attorney fees to the plaintiffs from the common fund; and (2) that the trial court erred in striking the jurors' affidavits, and the paragraphs related to those affidavits, from the defendants' "Motion to Set Judgment Aside or Motion for New Trial."
With regard to the issue of attorney fees, the defendants contend that there is no right to have an attorney paid by the opposing party in this case. The recovery of attorney fees in Alabama is allowed "only where authorized by statute, when provided in a contract, or by special equity, such as in a proceeding where the efforts of an attorney create a fund out of which fees may be paid." Eagerton v. Williams, 433 So. 2d 436, 450 (Ala.1983).
The statutory basis on which plaintiffs rely for the allowance of an attorney fee is Code 1975, § 34-3-60, which provides:
This statute has been applied to permit the awarding of attorney fees in proceedings involving the administration of estates. See Willett & Willett v. First National Bank of Anniston, 234 Ala. 577, 176 So. 344 (1937); Bidwell v. Johnson, 195 Ala. 547, 70 So. 685 (1915). In Clark v. Clark, 287 Ala. 42, 47, 247 So. 2d 361, 365 (1971), the Court, recognizing that "[a]n executor is a trustee, and his administration of the estate of a decedent is that of a trustee," held that Code 1940, Title 46, § 63 (now Code 1975, § 34-3-60), supported an award of a fee to the attorneys who represented the executor of an estate in a will contest. Thus, despite defendants' contention to the contrary, § 34-3-60 is applicable to a proceeding involving the administration of an estate. See Wilder v. Mixon, 442 So. 2d 922 (Ala.1983); Faulk v. Money, 236 Ala. 69, 181 So. 256 (1938).
The defendants also submit that the allowance of an attorney fee under § 34-3-60 is proper only where the litigation benefits all beneficiaries. Farlow v. Adams, 474 So. 2d 53 (Ala.1985); King v. Smith, 247 Ala. 1, 22 So. 2d 336 (1945). Clinton E. Wiberg contends that he has not benefited from the litigation because, as a residuary beneficiary under the will, he is entitled to only one-sixth of the funds that were previously in the certificates of deposit in his and his wife's names. The suit instituted by the plaintiffs resulted in a judgment that returned the funds in the certificates of deposit to the estate of Kathryn F. Wiberg. The share of all residuary beneficiaries, including Clinton E. Wiberg and Dorothea E. Wiberg, was increased by the plaintiffs' efforts. We conclude that in this situation the litigation benefited all beneficiaries. See Estate of Burns, 130 Misc.2d 317, 496 N.Y.S.2d 921 (Sur.Ct.1985). We affirm the trial court's finding that the plaintiffs' attorneys are entitled to be paid from the estate assets.
The remaining argument asserted by the defendants is that the trial court should not have struck from the defendants' motion for new trial certain paragraphs pertaining to the deliberations of the jury and the affidavits of three jurors in support of the new trial motion. The defendants contend that the affidavits support their claim that the jury was influenced by extraneous factors in its deliberation. As a general rule, the testimony of jurors is not admissible for the purpose of impeaching their own verdict. Dumas v. Dumas Bros. Mfg. Co., 295 Ala. 370, 330 So. 2d 426 (1976); C. Gamble, McElroy's Alabama Evidence § 94.06 (3d ed. 1977). However, an exception to this rule exists where the affidavit of a juror tends to show extraneous facts that influenced the verdict. Whitten v. Allstate Ins. Co., 447 So. 2d 655 (Ala.1984). An examination of the jurors' affidavits that were submitted by the defendants shows only that the jury failed to discuss the testimony and evidence that had been presented at trial. We do not consider this as tending to show extraneous facts that influenced the verdict. Thus, the affidavits were properly excluded by the trial court, as were the paragraphs in the new trial motion that pertained to the jury deliberations.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur. | September 18, 1987 |
0a6c516a-b043-42ee-b786-5e0a02495144 | Eastwood Mall Associates, Ltd. v. All American Bowling Corp. | 518 So. 2d 44 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 44 (1987)
EASTWOOD MALL ASSOCIATES, LTD., and James W. Wilson, Jr.
v.
ALL AMERICAN BOWLING CORPORATION and T.P. Crockmier's, Inc.
86-174.
Supreme Court of Alabama.
September 18, 1987.
Rehearing Denied December 4, 1987.
*45 Richard H. Gill and J. Fairley McDonald III of Copeland, Franco, Screws & Gill, Montgomery, for appellants.
George C. Douglas, Jr., of Najjar, Denaburg, Meyerson, Zarzaur, Max, Boyd & Schwartz, Birmingham, for appellees.
STEAGALL, Justice.
Eastwood Mall Associates, Ltd., (hereinafter "Eastwood") and James W. Wilson, Jr., appeal from a final judgment permanently enjoining them from relying upon Ala.Code 1975, § 35-4-6, as a basis for attempting to evict All American Bowling Corporation and T.P. Crockmier's, Inc. (hereinafter collectively "All American") from certain leased premises. We affirm.
This case involves the construction of a lease agreement dated February 19, 1968, between J.R. Waters as landlord and Bowling Corporation of America as tenant for a certain area in the Eastwood Mall shopping center in Birmingham, Alabama. Bowling Corporation of America changed its name to All American Bowling Corporation. All American subleased a part of the leased premises to its wholly owned subsidiary, T.P. Crockmier's, Inc.
The lease between Waters and All American was for a term of 20 years, beginning on September 1, 1960, and ending on August 31, 1980. All American was given an option to extend the original term of the lease for two further terms of 10 years each.
Prior to the expiration of the original term of the lease, Alabama Farm Bureau Mutual Casualty Insurance Company ("Farm Bureau") acquired the Eastwood Mall property and, thus, became the landlord. On August 24, 1979, All American notified an agent for Farm Bureau that All American intended to renew the lease for the additional term of 10 years. In December 1979, Farm Bureau and All American executed an agreement to extend the lease for a term of 10 years beginning on September 1, 1980, and ending on August 31, 1990. The agreement stated that it was made in consideration of the mutual promises of the parties and was an exercise of the first of two 10-year renewal options contained in the original lease.
In August 1984, Farm Bureau sold the Eastwood Mall property to defendant Eastwood Mall Associates, Ltd., an Alabama limited partnership in which defendant James W. Wilson, Jr., is a general partner. As a part of this transaction, Farm Bureau assigned to Eastwood all of the mall leases, "together with any and all extensions and renewals of any thereof."
At the time of the above transaction, the extension agreement between Farm Bureau and All American had been in effect for four years. After the purchase of the property, Eastwood and Wilson continued to accept rental payments from All American until June 18, 1986, a period of almost two years. In June 1986, Eastwood and Wilson informed All American that the lease became void as of September 1, 1980, under Ala.Code 1975, § 35-4-6, because the term of the lease exceeded 20 years and the lease had not been recorded within one year of its execution.
On July 10, 1986, All American filed a complaint seeking declaratory and injunctive relief. Eastwood and Wilson filed a counterclaim seeking relief for unlawful detention of the premises. All American amended its complaint to add counts for breach of the covenant of quiet enjoyment, constructive eviction by failure to repair a leaking roof, and fraud for failure of Eastwood *46 and Wilson to disclose that they had intended to avoid the lease when they purchased the property. On September 24, 1986, the trial court granted a partial summary judgment. The trial court concluded that § 35-4-6 did not render void the 10-year term created by exercise of the first option or the option to renew the lease for an additional 10-year term. The trial court also dismissed the counts for constructive eviction and fraud. Thus, the only remaining issue was whether Eastwood and Wilson had breached the lease by failing to repair a leaking roof.
In October 1986, Eastwood and Wilson filed a motion for certification of the September 24 order as a final judgment under Rule 54(b), A.R.Civ.P., and a motion to alter, amend, or vacate the September 24 order. On October 28, 1986, the trial court entered a final judgment wherein it refused to alter the result of the original order, and dismissed the claim for failure to repair a leaking roof because that issue had been resolved between the parties.
Eastwood and Wilson rely upon Ala.Code 1975, § 35-4-6, which provides as follows:
The original lease in the instant case must be considered one for 40 years for purposes of § 35-4-6, because the two 10-year options must be added to the initial term of the lease. Tennessee C.I. & R.R. Co. v. Pratt Consolidated Coal Co., 156 Ala. 446, 47 So. 337 (1908). Accordingly, the excess of the term over 20 years is void. However, the trial court found that the parties to the lease had entered into a new lease agreement following the end of the initial 20-year term. The trial court found that Farm Bureau was not under any obligation to treat the original lease as in effect beyond the initial 20 years because the lease had not been recorded as required by § 35-4-6. Nevertheless, the trial court found that Farm Bureau entered into an agreement with All American extending the lease for a term of 10 years with an option for an additional 10 years. The trial court further found that Eastwood and Wilson should be estopped from asserting that the lease is void because, after assignment of the lease, they accepted payments of rent for approximately two years.
The plain purpose of § 35-4-6 is to provide notice to innocent purchasers of property who otherwise might purchase property and then discover an unrecorded lease on the property that deprives them of the benefits of ownership for up to 99 years. See Harco Drug, Inc. v. Notsla, Inc., 382 So. 2d 1 (Ala.1980). In the instant case, Eastwood and Wilson had actual notice of the lease and its terms; thus, the purpose of § 35-4-6 was satisfied and they should not be permitted to use this statute to the detriment of All American.
Eastwood and Wilson argue that the doctrine of estoppel cannot be invoked to uphold an agreement that is void. They cite cases wherein agreements were held void because the Statute of Frauds had been violated and wherein estoppel was therefore not allowed as a defense. However, this Court has held that estoppel may be applicable to prevent the assertion of a defense that an agreement is void if the promisor has accepted the benefits of the agreement and the promisee has fully performed. Dean v. Myers, 466 So. 2d 952 (Ala.1985). In the instant case, Eastwood and Wilson accepted the rental payments for approximately two years, and it appears from the record that All American fully performed all of its obligations under the lease. Accordingly, we hold that estoppel applies in this case.
Based upon the determination that Farm Bureau and All American entered into a new lease agreement, coupled with Eastwood and Wilson's acceptance of rental payments under the lease, the judgment of the trial court is affirmed.
AFFIRMED.
*47 JONES, SHORES and ADAMS, JJ., concur.
TORBERT, C.J., concurs in the result. | September 18, 1987 |
22872320-8876-404a-834c-9be2a6bf857d | Whitehead v. Hester | 512 So. 2d 1297 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1297 (1987)
Jack Randall WHITEHEAD and Mae M. Whitehead
v.
Walston HESTER, Jewell Hester, and T.E. Farned.
CHAMPION INTERNATIONAL CORPORATION
v.
Walston HESTER, Jewell Hester, and T.E. Farned.
Nos. 85-526, 85-529.
Supreme Court of Alabama.
March 27, 1987.
Rehearing Denied May 15, 1987.
As Modified on Denial of Rehearing August 21, 1987.
*1298 Roger H. Bedford, Sr., of Bedford, Bedford & Rogers, Russellville, for appellants Whitehead.
Jerry C. Porch, Russellville, and J. Robert Fleenor of Bradley, Arant, Rose & White, Birmingham, for appellant Champion Intern. Corp.
Joe Fine and David Neal of Fine & Associates, Russellville, for appellees.
MADDOX, Justice.
Walston Hester, Jewell Hester, and T.E. Farned (hereinafter "Hester and Farned") filed a bill to quiet title to a mineral interest in land located in Franklin County against Jack Randall Whitehead, and May M. Whitehead ("the Whiteheads") and Champion International Corporation ("Champion"). The Whiteheads and Champion filed motions to dismiss, alleging that the complaint failed to state a claim upon which relief could be granted. The trial court overruled the motions to dismiss. The Whiteheads and Champion then filed a motion for summary judgment, which the trial court also denied.
The trial court conducted a hearing at which certain stipulations of fact were made and certain documentary evidence and exhibits were admitted. There was no oral testimony. The trial court held, after consideration of the pleadings, testimony, exhibits, and stipulations, that a deed existed which conveyed a separate mineral estate to a grantee other than the owner of the surface estate; that, through various conveyances that mineral interest came to Hester and Farned; and that paramount legal title to the minerals was vested in Hester and Farned. The trial court further found from the evidence that Hester and Farned and their predecessors in interest had held exclusive title to the subject mineral interest since the conveyance of that interest by a quitclaim deed in 1892. The Whiteheads and Champion filed a motion to alter, amend, or vacate the judgment, which was overruled. The Whiteheads and Champion each appealed. We affirm.
The subject land is located in the Southwest ¼ (SW ¼) of Section 32, Township 8 South, Range 15 West, Franklin County, Alabama. The parties derive their respective claims of title to the minerals under two separate chains of title which do not emanate from a common grantor and which are not traced back to a patent from the United States. The land was conveyed by the United States to Elijah Bullen by patent dated December 9, 1844, but a break in each party's chain of title exists, because in 1890, a fire destroyed the courthouse in which land records were maintained in Franklin County. See Appendix A for a diagram of the separate chains of title.
Hester and Farned claim ownership of the mineral interest in the subject property by virtue of a direct and unbroken chain of conveyances commencing in 1892. The original conveyance, a quitclaim deed, dated October 7, 1892, from Sheffield Land, Iron & Coal Company ("Sheffield") to John C. Cheney is the first documentary evidence *1299 in the record which shows a transfer of the subject properties or the mineral estate therein following the destruction by fire of all records of title maintained in Franklin County in 1890. The quitclaim deed from Sheffield to Cheney was made in consideration of payment by Cheney of several hundred thousand dollars and specifically covered "the mineral interest [owned by Sheffield in the] SW ¼ of Section 32; [other described lands] ... all in Township 8 Range 15." Each successive deed in Hester and Farned's chain of title following this conveyance was recorded in Franklin or Colbert County, although some of the conveyances were filed of record many years after they were executed, and each succeeding conveyance transfers the subject mineral estate. (Appendix A shows the date of recordation of each conveyance). Hester and Farned, and those through whom they claim, did not assess or pay taxes on the mineral interest claimed by them until 1980. Since 1980, Hester and Farned have assessed to them and paid twice the taxes on the mineral interest claimed.
The Whiteheads and Champion trace their surface ownership through a chain of conveyances commencing with a warranty deed from W.H. Tipton and wife to J.A. Thorn, dated October 27, 1906, which was 14 years after the initial quitclaim deed conveying the mineral interest to Hester and Farned's predecessor. The Whiteheads and Champion (and their predecessors in interest) have assessed and paid taxes for various periods of time from the initial acquisition of their surface chain of title in 1906. Taxes were paid on the subject property from 1906 to 1915 and from 1926 until the time suit was filed, but no separate assessment was made for the mineral estate.
The issues raised by the Whiteheads and Champion on appeal are: (1) whether the trial court erred when it failed to grant the motions to dismiss and the motion for summary judgment; (2) whether the trial court erred in finding that a separate mineral estate existed, and that legal title to the minerals was vested in Hester and Farned; and (3) whether the trial court erred in not holding that Hester and Farned were barred by the rule of repose.
As earlier stated, the trial court decided this action based upon the pleadings, stipulations, documentary evidence, and exhibits, and no oral testimony was taken; consequently, the ore tenus rule is not applicable in this case, and findings of fact made by the trial court are not entitled to the traditional presumption of correctness which is available when the trial court hears oral testimony and observes the witnesses. Home Indemnity Co. v. Reed Equipment Co., 381 So. 2d 45 (Ala.1980); Perdue v. Roberts, 294 Ala. 194, 314 So. 2d 280 (1975). We must consider the evidence anew and render a judgment in light of the evidence and the applicable legal principles. Perdue v. Roberts, supra.
It is well settled law in this state 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. Rule 12(b), Ala.R.Civ.P.; Fontenot v. Bramlett, 470 So. 2d 669 (Ala.1985). When reviewing a motion to dismiss for failure to state a claim, this Court resolves all doubts in favor of the plaintiff. Rice v. United Ins. Co. of America, 465 So. 2d 1100 (Ala.1984).
A summary judgment is proper only when there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Whitehead v. Davison Oil Co., 352 So. 2d 1339 (Ala.1977).
The parties disagree on the nature of the action filed by Hester and Farned, which they styled as one seeking injunctive relief and a declaration concerning the ownership of the mineral interests underlying the property situated in Franklin County. The Whiteheads and Champion contend that this was an action to quiet title under the provisions of the Grove Act, Code 1975, § 6-6-560, et seq., and that Hester and Farned failed to allege and prove that they came within the provisions of that statute.
*1300 Hester and Farned claim that the argument by the Whiteheads and Champion concerning the applicability of the Grove Act is raised for the first time on appeal, but they answer the argument regarding the applicability of the Grove Act by contending that their complaint is not governed by the provisions of the Grove Act.
In any event, there is only one form of action in Alabama, known as a "civil action," in which all claims between the parties should be litigated. DuBoise v. Brewer, 349 So. 2d 1086 (Ala.1977); Rule 2, Ala.R.Civ.P.
Alabama law, even prior to the effective date of the Alabama Rules of Civil Procedure, was to the effect that the character of a pleading was determined by its essential substance and not from its description, name, or title. See, Guaranty Funding Corp. v. Bolling, 288 Ala. 319, 260 So. 2d 589 (1972); Union Springs Tel. Co. v. Green, 285 Ala. 114, 229 So. 2d 503 (1969).
Even if the designation of a pleading is incorrect, it will not result in any penalty against the pleader under our Rules of Civil Procedure. See, Swain v. Terry, 454 So. 2d 948 (Ala.1984); Ex parte Jones, 447 So. 2d 709 (Ala.1984).
The precise point applicable to the instant appeal was addressed by this Court in Long v. Ladd, 273 Ala. 410, 142 So. 2d 660 (1962), wherein the Court opined:
273 Ala., at 412, 142 So.2d, at 661-62. The Court continued, stating:
Id., 273 Ala. at 412, 142 So. 2d at 662.
We are of the opinion that Hester and Farned, who alleged that they held legal title to the mineral interest in the subject property, were entitled to the remedy set forth in their pleadings that the trial court "quiet title in and to the mineral interest in the subject property in the names of the plaintiffs...."
In Smith v. Gordon, 136 Ala. 495, 34 So. 838 (1902), complainants had filed a bill in equity to compel a determination of claims and to quiet title to a mineral interest in land. The Court said:
136 Ala. at 497, 34 So. at 838.
We are of the opinion that the allegations of the complaint in this cause were sufficient to allege a claim under the provisions of Code 1975, § 6-6-540, et seq.
Code 1975, § 6-6-540, provides:
"When any person is in peaceable possession of lands, whether actual or constructive, claiming to own the same, in *1301 his own right or as personal representative or guardian, and his title thereto, or any part thereof, is denied or disputed or any other person claims or is reputed to own the same, any part thereof or any interest therein or to hold any lien or encumbrance thereon and no action is pending to enforce or test the validity of such title, claim or encumbrance, such person or his personal representative or guardian, so in possession, may commence an action to settle the title to such lands and to clear up all doubts or disputes concerning the same. (Code 1896, § 809; Code 1907, § 5443; Code 1923, § 9905; Code 1940, T. 7, § 1109.)"
The parties stipulated that there had been no actual possession of the subject mineral interest because there has never been any severance of the minerals. In Chestang v. Tensaw Land & Timber Co., 273 Ala. 8, 134 So. 2d 159 (1960), this Court recognized that "[u]sually, there is no actual possession [of mineral rights involved in suits to quiet title], and in such cases, title draws to it constructive possession, and the party with the better title is also in possession." (Emphasis added.)
We believe the complaint here sufficiently alleged that the plaintiffs were in "constructive possession." That term, as used in § 6-6-540, has been defined as that possession which the law annexes to the legal title or ownership of property, when there is a right to immediate actual possession. Brunson v. Bailey, 245 Ala. 102, 16 So. 2d 9 (1943).
Unquestionably, a complaint may be properly filed under § 6-6-540 to quiet title to the mineral interest in land by the owner of the interest. Sanford v. Alabama Power Co., 256 Ala. 280, 54 So. 2d 562 (1951). Consequently, the trial court did not err in denying the defendants' motions to dismiss; and because the question of who owned the mineral interest was a genuine issue of material fact, the trial court properly denied the defendants' motion for summary judgment, Rule 56(c), Ala.R.Civ.P.
The Whiteheads and Champion next argue that there is no basis in the record for the court's finding of a severance of the mineral interest from the surface estate or the finding that legal title to the minerals was vested in Hester and Farned.
We are of the opinion that the trial court was justified in finding that Hester and Farned, and their predecessors in interest, have held exclusive title to the subject mineral estate for the entire period from 1892 to the present. There was never any disseisin or surrender by Hester and Farned, or their predecessors, of the mineral interest following its severence from the surface estate by the quitclaim deed. Because there has been no actual possession of the mineral interests by either Hester and Farned or the Whiteheads and Champion, the law ascribes possession to him who holds paramount legal title. See, Gurganus v. Kiker, 286 Ala. 442, 241 So. 2d 113 (1970).
Champion argues that the record shows without dispute that the Sheffield quitclaim deed is ineffective to transfer title, because there is no evidence which traces title back to the United States or to a common grantor. Of course, neither side in this case can trace its title back to the sovereign or to a common grantor because of the total destruction of all the land records by the 1890 fire that also destroyed the Franklin County Courthouse.
We cannot accept the assertion that Sheffield was not the holder of legal title to the land and was not legally empowered to sever the mineral interest, under the facts of this case. The first conveyance covering the disputed mineral interest which was filed for record after the destruction of county records by fire was the conveyance in 1892 from Sheffield to John Cheney. This conveyance was competent and relevant evidence of a separate mineral estate, in which Sheffield claimed an interest. Since the conveyance from Sheffield to Cheney in 1892, the mineral interest has passed through a clear and unbroken chain of title directly to Hester and Farned. If the argument of the Whiteheads and Champion were sustained, then one who acquired *1302 a mineral interest created in Franklin County prior to 1890 might have difficulty in establishing the validity of his title. To require Hester and Farned to somehow locate the originals of the instruments that were destroyed in the fire and, thus, establish their chain of title from the present date completely back to a government patent or to a common grantor, would place an unreasonable burden on them, or on others similarly situated.
The initial conveyance in the Whiteheads' and Champion's chain of title was from W.H. Tipton to J.A. Thorn in 1906. Again, because of the destruction of the courthouse records by fire, there is nothing in the records to indicate that W.H. Tipton had any title whatsoever to convey in 1906. After the patent in 1844, the next conveyance concerning the subject property filed for recordso far as the present records indicatewas the 1892 quitclaim deed from Sheffield to Cheney. Some 14 years later, the Whiteheads' and Champion's chain of title begins with a deed from one W.H. Tipton to J.A. Thorn. In such circumstances, when dealing with two separate and distinct titles to the same property, as here, the Court should acknowledge the superiority of the title of those obtaining interests by the earliest recorded instruments. Pollard v. Simpson, 240 Ala. 401, 199 So. 560 (1941). In that case, the Court was faced with two conflicting titles, one commencing in 1886 and showing title to the minerals involved in the suit, and another commencing four years later, in 1890, and reflecting a claim to ownership in the surface and the mineral estate. There, the Court set out the disputed claims and the principle of law to be applied, as follows:
"We do not so interpret the evidence. When all the evidence is considered together it tends to establish the fact that Mrs. M.L. Simpson owned the minerals *1303 in, on or under the northwest quarter of the northwest quarter of section 8, and that J.A. Simpson owned the minerals in, on or under the northeast quarter of the northwest quarter of section 8. If these facts are established by the evidence, they will constitute a bar to the relief prayed for in the bill.
240 Ala. at 402-03, 199 So. at 561-562.
It is true that Hester and Farned are unable to show a conveyance to Sheffield because of the destruction of the records in Franklin County in 1890; nevertheless, the first deed of record after the fire, from Sheffield to Cheney, does indicate a severance of the mineral estate and a claim to the mineral estate on the part of the grantee of Sheffield and the grantee's successors and assigns. The subsequent conveyances by the assignees of John Cheney to Hester and Farned, all of which convey the mineral interest now in dispute, establish the paramount legal title of appellees and entitle them to the relief granted them by the trial court. Pollard, supra.
Champion also asserts that the claim of title of Hester and Farned should be barred by the rule of repose since Hester and Farned's claim of title was undisclosed by the public records. There was evidence which, if believed, shows otherwise. An abstract introduced in evidence indicates that the chain of title for the S ½ of the SW ¼ of Section 32 is contained in pages 1 through 45. The abstract then indicates that pages 46 through 90 are the chain of title to the N ½ of the SW ¼ of Section 32. Finally, the abstract indicates that pages 91 through 135 "are the chain of title for the mineral interest of T.E. Farned and wife, Irma Farned, and Walston Hester and wife, Jewel Hester, for the SW ¼ of Section 32." The affidavit of Larry Prince, an experienced abstracter in Franklin County, *1304 indicates that his examination of the records in Franklin and Colbert Counties had indicated an unbroken chain of title covering the mineral interest disputed in the case at bar from Sheffield Land, Iron & Coal Company in 1892 down to Hester and Farned.
The evidence was sufficient to dispute the Whiteheads' and Champion's assertions that they had no notice, actual or constructive, that Hester and Farned's chain of title was duly recorded among the records of Franklin and Colbert Counties. Section 35-4-63, Code 1975, clearly provides that "recording in the proper office of any conveyance of property or other instrument which may be legally admitted to record operates as a notice of the contents of such conveyance or instrument without any acknowledgment or probate thereof as required by law." Notice of facts which ought to excite inquiry and which, if pursued, would lead to knowledge of other facts, operates as notice of these facts. See generally, Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So. 2d 591 (1975); Vaughan v. Fuller, 278 Ala. 25, 175 So. 2d 103 (1965). In the case at bar, it is apparent that the trial court was authorized to find that the Whiteheads and Champion, in the exercise of reasonable diligence, should have had adequate notice of the mineral interest claimed by Hester and Farned and their predecessors. The original conveyance in Hester and Farned's chain of title severing the mineral estate from the surface appears in 1892 and has been of record in Franklin County for over ninety years. The Whiteheads and Champion had knowledge of facts sufficient to provoke inquiry as to the source of Hester and Farned's title, and could have ascertained their source had they instituted sufficient inquiry.
This case is unique in that the records of title in the courthouse burned. Appendix A, which is attached, showing the chains of title of both sets of parties, shows, without question, that there is a break in the chain, which is caused by the fact that the records of title were burned in a fire. Consequently, of necessity, this case, is one in which the parties cannot trace their chains of title back to a common grantor. If, of course, Whitehead and Champion had been able to trace their titles back to a patent from the United States, and there was nothing filed of record in that chain of title which would indicate that the mineral interest had been severed, the result we reach here would be different. See Sanford v. Alabama Power Co., 256 Ala. 280, 54 So. 2d 562 (1951).
The judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
JONES, ALMON, BEATTY and STEAGALL, JJ., concur.
TORBERT, C.J., and SHORES and HOUSTON, JJ., dissent.
ADAMS, J., not sitting.
*1305
HOUSTON, Justice (dissenting):
I respectfully dissent.
The majority correctly states the applicable standard of review. We must consider the evidence anewfree from the assumptions of correctness which the ore tenus rule would impose upon usand render a judgment in light of the evidence and the applicable legal principles. Perdue v. Roberts, 294 Ala. 194, 314 So. 2d 280 (1975).
Section 6-6-560, Code 1975 (the Grove Act), can be used to clear title to severed mineral interests, Shelton v. Wright, 439 So. 2d 55 (Ala.1983); Edmonson v. Colwell, *1306 504 So. 2d 235 (Ala.1987), if there is strict compliance with the requirements set forth therein.
However, in this case, the trial court would have erred in failing to grant the motion to dismiss and the motion for summary judgment, if this action had been brought under § 6-6-560, Code 1975, since (1) the plaintiffs, Hester and Farned, were not in the actual, peaceable possession of the minerals and the defendants were in the actual possession of the surface under a warranty deed which I find from the evidence did not exclude the minerals in the quarter section in dispute (SW ¼ of Section 32, Township 8 South, Range 15 West, Franklin County, Alabama), and were, therefore, in possession of the minerals; (2) Hester and Farned had not paid taxes for the 10-year period preceding the filing of the action, and I find that the defendants and their predecessors in title had paid taxes for 59 consecutive years immediately preceding the filing of this action.
The majority concludes that the trial court had original equity jurisdiction over Hester and Farned's interest for an adjudication of their ownership of the subject mineral interest. In Long v. Ladd, 273 Ala. 410, 142 So. 2d 660 (1962), we wrote that the enactment of what is now § 6-6-560, Code 1975, did not take away the jurisdiction of equity to remove a cloud from title which the equity courts had prior to the passage of the statute. In Long v. Ladd, supra, the plaintiff was in possession of the property and had paid taxes on the property.
In Taylor v. Gray, 265 Ala. 279, 281, 90 So. 2d 778 (1956), we wrote:
Therefore, the majority opinion is extending the jurisdiction of a trial court beyond that of the original jurisdiction of a court of equity. I do not think that it should be so extended; and, therefore, in my opinion the trial court erred to reversal by not granting the motion to dismiss and then again in not granting the motion for summary judgment.
This action was decided by the trial court upon the pleadings, stipulations, documentary evidence, and exhibits offered by the parties; no oral testimony was taken, and the facts were not disputed. Therefore, the ore tenus rule is not applicable.
I am persuaded that the trial court erred to reversal in not holding that Hester and Farned were barred by the rule of repose from asserting a claim to the mineral interest, when they and those through whom they claim failed to assess and to pay ad valorem taxes on that mineral interest or to take possession of the minerals for more than 20 years prior to filing this suit. Shelton v. Wright, 439 So. 2d 55 (Ala.1983). See also Emondson v. Colwell, supra. Hester and Farned contend that their chain of title goes back to 1892. Therefore, they and their predecessors had color of title to the minerals, without assessing them for ad valorem taxes for 88 years or making the one time payment in lieu of ad valorem taxes under § 40-20-35, Code 1975, to the Judge of Probate of Franklin County. They and their predecessors had color of title to the minerals, without acts of possession for 93 years prior to filing this action. Their action is barred by our rule of repose. Shelton v. Wright, supra.
My dissent is based only upon Hester and Farned's lack of standing and upon the Alabama rule of repose. However, I would be remiss if I did not express my concern about the effect that the majority's opinion will have on title examination in this state. Champion and its predecessors in title had, for 59 consecutive years, assessed the property for ad valorem taxes and had paid taxes for those years, without the minerals being excluded. Champion and its predecessors in title were in possession of the surface of the property continuously for 78 years, with warranty deeds which did not except or exclude minerals in that property. *1307 For 93 years, Hester and Farned and their predecessors did nothing but rely upon the recordation of a quitclaim deed to minerals. Unless the title examiner can find that perfect chain of title from the present date back to the United States of America or has checked every deed in the appropriate probate office, he cannot be sure that there is not a superior mineral interest which is not evidenced by assessment or payment of taxes or possession.
TORBERT, C.J., and SHORES, J., concur.
MADDOX, Justice.
Both appellants filed applications for rehearing in which they contend once again that the appellees failed to prove that a holder of the legal title to the mineral estate had severed that estate. Of course, this point is discussed at length in the original opinion, and we need not discuss that point further except to say, as Champion admits in its brief on application for rehearing, that "neither party relying solely on his paper title can prove that he holds the legal title to the mineral interest separate from the surface since neither party can trace his paper title from a grantor in possession or a common source or by an unbroken chain from the government." (Emphasis added.)
Champion argues:
In Shelton v. Wright, 439 So. 2d 55 (Ala. 1983), cited in the dissent on original deliverance, there were two mineral deeds from the same grantor, both acknowledged by the same attorney. The first deed conveyed the mineral rights to the appellants' predecessors in title, and reserved a vendor's lien. The grantees of the first deed never assessed the mineral interests for taxes and did not lease the interests to another or otherwise manifest any signs of ownership for more than 60 years, and the grantees of the second deed, which was executed only a year after the first deed, promptly assessed the mineral interests and continued to do so down through the years. In that case, this Court did hold that the trial court did not err in finding that title to the mineral interests was in the grantees under the second deed. There, this Court said: "[T]he implication arises that the grantor in these two deeds foreclosed his lien against the appellants' predecessors and conveyed the mineral interests to the appellee's predecessors." 439 So. 2d at 59.
Champion asks us to apply equitable principles applied in Shelton and hold that the title to the mineral interest should be quieted in it. We considered this principle on original deliverance, but we do not find the trial court erred, because there was evidence before the trial court in this case that there was an unbroken chain of title from Sheffield Land, Iron & Coal Company from 1892 down to Hester and Farned.
Furthermore, in Shelton there was justification for applying the rule of repose under the circumstances of that case. Here, the trial judge found, and we find, that the circumstances are different; therefore, Shelton is distinguishable on its facts.
*1308 Champion further voices concern about how this opinion will affect title examinations in this state. We cannot share the fear expressed by Champion because, on original deliverance, we indicated the uniqueness of this case. A fire had destroyed the courthouse records. We cannot believe that the factual situation here will be a common occurrence in the state of Alabama, and even if there are other instances where the record title has been destroyed by fire, as it has here, one or the other of the parties may be able to produce an original deed which traces title back to a common source or to the United States.
OPINION EXTENDED; APPLICATION OVERRULED.
JONES, ALMON, BEATTY and STEAGALL, JJ., concur.
TORBERT, C.J., and SHORES and HOUSTON, JJ., dissent.
ADAMS, J., not sitting.
MADDOX, Justice.
OPINION ON FIRST APPLICATION FOR REHEARING MODIFIED; SECOND APPLICATION FOR REHEARING OVERRULED.
JONES, ALMON, BEATTY and STEAGALL, JJ., concur.
TORBERT, C.J., and SHORES and HOUSTON, JJ., dissent.
ADAMS, J., not sitting. | August 21, 1987 |
aa7428cc-98bc-47e0-b8ad-55a444101f89 | Fairhope Single Tax Corp. v. Rezner | 527 So. 2d 1232 | N/A | Alabama | Alabama Supreme Court | 527 So. 2d 1232 (1987)
FAIRHOPE SINGLE TAX CORPORATION, et al.
v.
Rudolph John REZNER, Sr., et al.
Rudolph John REZNER, Sr., et al.
v.
FAIRHOPE SINGLE TAX CORPORATION, et al.
85-482, 85-613.
Supreme Court of Alabama.
September 11, 1987.
Rehearing Denied March 25 and June 24, 1988.
*1234 M. Roland Nachman, Jr., and Norborne C. Stone, Jr., of Stone, Granade, Crosby & Blackburn, Bay Minette, for appellants/cross-appellee.
J. Don Foster, of Foster, Bolton & Dyson, Foley, and Champ Lyons, Jr., of Coale, Helmsing, Lyons & Sims, Mobile, for appellees/cross-appellant.
Lawrence B. Voit, of Silver & Voit, Mobile, for amicus curiae Gerald Pond in support of appellee/cross-appellant Rudolph Rezner.
TORBERT, Chief Justice.
These appeals arise from a class action suit filed by several of the lessees of the Fairhope Single Tax Corporation ("FSTC") against FSTC and several of its officer-members. The plaintiff lessees sought a wide range of relief, including an injunction to prevent the dissolution of FSTC, an accounting, a revision of the lease forms and of FSTC's constitution, a declaration of mineral rights, damages (both compensatory and punitive), and attorney fees. The trial court made extensive findings of fact, which are not challenged on appeal, and entered a judgment granting most of the relief sought by plaintiffs. Defendants appealed; plaintiffs cross-appealed in order to get certain details of the trial court's order changed.
FSTC was organized in 1904 under the authority of what is now Code 1975, §§ 10-4-190 through -194, and is sui generis. FSTC originated as a single tax colony founded in 1894 in order to demonstrate the values of Henry George's single tax theory as expressed in his book Progress and Poverty. FSTC now owns approximately 4300 acres in Baldwin County and has about 1300 lessees. There are only 140 members of FSTC, and only about 60 members actually hold FSTC leaseholds. FSTC's assets total over $20 million.
There was much oral and written evidence in this case, and the trial court made extensive findings of fact and conclusions of law in its 19-page judgment. Basically, the executive council of FSTC ordered large increases in rent over several years and increased rent for various "country" lots at a higher rate than for "city" lots. FSTC members used FSTC money from the "Rent Fund" (which FSTC admits is a trust) to develop a subdivision; FSTC also transferred interest from the Rent Fund to the "Land Fund" (used to buy land). The members attempted to dissolve FSTC in 1979 in order to reorganize it as a "for profit" corporation with each member having one share, and $2600.00 was paid out of the Rent Fund to an attorney, who was a member, for his work on the attempted dissolution. Income taxes on the Land Fund and on a "Mineral Fund" were paid out of the Rent Fund. The trial court determined that all of these actions (along with others) amounted to a breach of a fiduciary duty by FSTC and the individual defendants.
FSTC revised the lease it had used since 1932, and the trial court held that the adoption of the revised lease was a breach of the contract FSTC had with each lessee under the standard lease to maintain a trust with the rent money received from all lessees for the equal benefit of all lessees.
The trial court ordered extensive changes in the operation of FSTC. These *1235 include: giving all lessees the opportunity to become members (with certain conditions), reinstating use of the standard lease, reevaluating the rent assessment system, ending restrictions on transfer of improvements, recognizing that clearing of land is an improvement, returning misused moneys to the Rent Fund, making all minerals for the common benefit of all members and lessees, and restricting cash surplus to an amount equal to twice FSTC's annual expenses. The court also held § 10-4-194 unconstitutional. It also enjoined any attempt to dissolve FSTC. Further, the defendants were ordered to pay $141,600.00 in compensatory damages, $110,000.00 in punitive damages, and $179,686.77 in attorney fees.
Appellants raise the following issues:
(1) Whether the trial court violated members' rights by establishing substantive criteria for membership.
(2) Whether the trial court erroneously injected itself into FSTC management (especially in the areas of rents and leases).
(3) Whether the trial court ignored the rule that a stockholder must first comply with the corporation's internal procedure for grievance resolution before filing suit.
(4) Whether the trial court erroneously intruded into the business judgment of FSTC management (especially in the areas of improvement classifications and mineral rights).
(5) Whether the trial court erroneously awarded plaintiffs compensatory and punitive damages.
(6) Whether the trial court erroneously awarded plaintiffs attorney fees.
On cross-appeal, appellees raise these issues:
(1) Whether the trial court erred in requiring prospective members to take the "Henry George course" on single tax theory and in allowing applicants to be rejected for "good cause."
(2) Whether the trial court erred in holding § 10-4-194 unconstitutional.
(3) If defendants did not waive the issue of pursuit of internal corporate remedies by not raising it at trial, then did the trial court err in not admitting a letter showing plaintiffs' attempt to pursue internal remedies?
Most of these issues can be resolved by answering the following question: What is the essential nature and character of FSTC? Defendants argue that FSTC should be treated as a commercial corporation and, thus, that the trial court impermissibly meddled in the internal management of FSTC. Plaintiffs argue that FSTC should be treated as a trustee administering a charitable trust for the benefit of members and lessees alike. We stress that FSTC is sui generis; it is not exactly like any other entity known to our law, and thus, our holding in this case is a narrow one. We hold that FSTC is more in the nature of a commercial corporation than in the nature of a trustee of a charitable trust.
Section 10-4-190 provides that "Ten or more persons desiring to associate themselves together not for pecuniary profit in the sense of paying interest or dividends on stock, but for mutual benefit through the application of cooperation, single-tax or other economic principles, may become a body corporate...." In all of the opinions that this Court has issued that deal with FSTC, we have analogized FSTC members to stockholders in a corporation. "[T]he corporation [FSTC] cannot be dissolved at the suit of a minority stockholder on the ground of its already accomplished or foreshadowed failure, financial or otherwise." Fairhope Single Tax Corp. v. Melville, 193 Ala. 289, 310, 69 So. 466, 473 (1915). "In the context of Title 10, section 168 [now Code 1975, § 10-4-190], we equate `members' with `stockholders.'" Opinion of the Justices No. 222, 333 So. 2d 125, 126 (Ala. 1976). "In considering Code 1975, §§ 10-4-190 through 10-4-193 ... we deem `members' to be the equivalent of `stockholders' of a corporation and thus to enjoy the same equity ownership and property rights that shareholders enjoy in a commercial corporation." Opinion of the Justices No. 262, 373 So. 2d 293, 296 (Ala.1979). See *1236 also, Rezner v. Fairhope Single Tax Corp., 292 Ala. 456, 460, 296 So. 2d 166, 170 (1974) (likens members to stockholders who must apply to a corporation's directors for redress before they can sue the corporation).
"[A]s a general rule courts of equity will not interfere with the internal business management of corporate assets by the board of directors. But in case of fraud or maladministration, destructive or injurious to the corporation, this rule does not apply." Cherry Investment Corp. v. Folsom, 273 Ala. 575, 577, 143 So. 2d 181, 183 (1962). The business judgment rule applies to non-profit corporations as well. W. Fletcher, Cyclopedia of Corporations, § 2104, at 425 (1976).
Since FSTC is more like a commercial corporation than a trustee, the trial court erred in using its equitable powers to make changes in the internal management of FSTC and to enjoin any attempt by management to dissolve the corporation.
The trial court also erred in making changes in FSTC's membership policy. Section 10-4-192 provides that any corporation incorporated under § 10-4-190 "may admit such other persons to participate in its benefits as it may see fit and upon such conditions as it may impose."[1] (Emphasis added.) Article III of FSTC's 1932 constitution states, "Any person over the age of eighteen years whose application shall be approved by the Executive Council and who shall contribute to the Corporation one hundred dollars, shall be a member of the Corporation....." (Emphasis added.) "`The grant or refusal of membership in a voluntary association is a matter within the complete control of the organization, which has the power to enact laws governing the admission of members, and to place restrictions on the right of admission.'" Chapman v. American Legion, 244 Ala. 553, 556, 14 So. 2d 225, 228 (1943) (quoting 7 C.J.S. Associations § 23 P. 59 (1980)). Since FSTC is not to be treated as a trustee, then its membership policy is within its discretion.
The trial court erred in making changes in FSTC's management on the basis of the contracts between FSTC and its lessees. "When parties enter a written contract, the writing is the sole expositor of the intention of the parties and the transaction." Whitehead v. Johnston, 467 So. 2d 240, 243 (Ala.1985). The plaintiffs complain that they had contracted with FSTC to have FSTC apply the principles of Henry George. Nowhere in the standard lease and lease application (which is incorporated into the lease) or in the revised lease and lease application is the Henry George theory mentioned. The standard lease states:
The above land rental principle is indeed very similar to the basic principle of Henry George's theory: "We must make land common property." H. George, Progress and Poverty 295 (1879). However, the standard lease does not say that Henry George's theory will be applied. The standard lease application incorporates FSTC's constitution, but the constitution never mentions the Henry George theory.
All of the plaintiffs' expert testimony about how the Henry George theory should work and how FSTC was not applying it is irrelevant to the contract claim, for the plaintiffs never contracted to have the Henry George theory applied.
As to the plaintiffs' claim that FSTC has discriminated in its rent increases, this *1237 Court has stated what actions are necessary in order to state a cause of action with respect to the rents charged by FSTC. In Rezner v. Fairhope Single Tax Corp., 292 Ala. 456, 459, 296 So. 2d 166, 169 (1974), we relied upon Fairhope Single Tax Corp. v. Melville, 193 Ala. 289, 69 So. 466 (1915), and stated that allegations as to these wrongs [the rents] did not state a cause of action absent allegations that the internal remedies of the corporation have been invoked or that to do so would be futile. Plaintiffs made no allegation that they had invoked FSTC's internal rent review procedure or that to do so would be futile. Plaintiffs did attempt to introduce a letter written to the members approximately two years after this suit was filed; plaintiff claimed this letter was an internal demand for relief. This letter was to the members in general and made no attempt to invoke the internal remedies procedure of FSTC. Defendants raised as a defense the failure to state a claim upon which relief can be granted and they showed at trial the plaintiffs' failure to pursue the internal remedies of the corporation. Therefore, plaintiffs have failed to state a cause of action as to the setting of rents.
The trial court held that § 10-4-194 is unconstitutional. A challenge to the constitutionality of an Alabama statute falls under the Alabama Declaratory Judgment Act, § 6-6-220 et seq., and the Attorney General must "be served with a copy of the proceeding and be entitled to be heard." Section 6-6-227. The Attorney General was not served with notice of the defendants' challenge to § 10-4-194. The defendants should have complied with § 6-6-227. Barger v. Barger, 410 So. 2d 17 (Ala.1982). Therefore, the trial court had no jurisdiction to resolve the constitutional claim and its decree concerning § 10-4-194 is void. Guy v. Southwest Alabama Council on Alcoholism, 475 So. 2d 1190 (Ala.Civ.App. 1985).
The trial court also assessed compensatory damages against the defendants, punitive damages against the individual defendants, and attorney fees. These damages awards were for the misuse of monies from the Rent Fund. The defendants admit that the Rent Fund is a trust fund created from the standard lease that states that all rents "shall be administered as a trust fund for the equal benefit of those leasing its lands." A trustee owes undivided loyalty to the trust. Birmingham Trust Nat. Bank v. Henley, 371 So. 2d 883, 895 (Ala.1979), cert. denied, 445 U.S. 915, 100 S. Ct. 1273, 63 L. Ed. 2d 598 (1980). The misuse of monies from the Rent Fund was a breach of duty on the part of the defendants. Where the course of dealing of the trustee is such that it causes a loss, a trustee will be liable. First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415, 428 (Ala.1982). The Rent Fund was to be for the equal benefit of all lessees, and the lessees were denied benefit of the funds wrongfully taken from that fund. Therefore, the trial court correctly ordered that compensatory damages be paid into the Rent Fund to reimburse it.
The trial court also assessed punitive damages against the individual defendants. Punitive damages may be awarded where malice or fraud is involved. C. Bogert, The Law of Trusts and Trustees, § 862, at 41 (rev. 2d ed. 1982). The trial court did not find that the defendants' breaches of duty concerning the Rent Fund involved malice or fraud, and the record does not indicate such conduct. The trial court erred in awarding punitive damages in this case.
The trial court correctly awarded attorney fees to the plaintiffs. The plaintiffs' suit benefited the Rent Fund trust. "In Alabama, when the contentions of a party in litigation are in the interest of and for the benefit of the entire trust estate, the courts will award costs and attorney fees from the trust estate to the party benefiting the trust estate." Farlow v. Adams, 474 So. 2d 53, 59 (Ala.1985).
The trial court's award of compensatory damages is affirmed. While an award of attorney fees is appropriate in this case, we remand this aspect of the judgment for the trial court's consideration of the amount of the award in light of our reversal of other parts of the judgment in this case. The *1238 trial court's award of punitive damages is reversed. The trial court's holding that § 10-4-194 is unconstitutional is reversed. The trial court's order making changes in FSTC's management, rent policies, and membership policies is reversed. This cause is remanded to the trial court for it to dissolve its injunction and to enter an order not inconsistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
MADDOX, JONES, BEATTY, HOUSTON and STEAGALL, JJ., concur.
ALMON, J., not sitting.
TORBERT, Chief Justice.
In their motion for rehearing, the appellees/lessees raise several issues considered in our original opinion and some not directly addressed in that opinion although argued in their brief.
Concerning discriminatory rent increases, the lessees now argue for the first time that they cannot be held to the requirement of pursuing internal remedies because they are not members of FSTC, and, therefore, that they properly stated a cause of action by alleging that FSTC had discriminated against them in violation of their lease agreements, without stating that they had pursued internal remedies or that to do so would be futile. We agree.
As noted above, this Court has equated members of FSTC with stockholders of a commercial corporation. Unlike members, the non-member lessees have no equity ownership or property rights in FSTC. As against FSTC, their rights are purely contractual, and it follows that the non-member lessees are under no duty to make an internal demand on FSTC before filing suit to enforce contract rights under their lease agreements.[1]
The next question is what effect this conclusion will or should have on the trial court's order requiring FSTC to implement a new rent assessment system. As an initial matter, the specific contractual rights of the non-member lessees regarding annual rents should be enumerated and considered. These rights are derived from the standard "Application for Land," the lease agreement, and the FSTC constitution and can be summarized as follows:
The annual rent is to be the "annual rental value," exclusive of the lessee's improvements, as determined by the executive council "under the avowed principles of so fixing the rentals of its lands as to equalize the varying advantage of location and natural qualities of different tracts." The term "rental value," as applied to realty, means the value of the use of the land. White Roofing Co. v. Wheeler, 39 Ala.App. 662, 666, 106 So. 2d 658, 662 (1957), cert. denied, 268 Ala. 695, 106 So. 2d 665 (Ala. 1958). Also, with the exception of the right to participate in the governance of FSTC, the non-member lessees have the right to be treated with strict equality with members in "the distribution of benefits." Based on the essential purpose of FSTC with respect to land, we construe this right to include the right to be treated equally with members in the determination of annual rents.
In summary, although there is no contractual "fairness" limitation in the determination of the lessees' annual rents,[2] FSTC is obviously bound by three contract terms: the annual rent 1) must approximate the annual value of the use of the *1239 land, exclusive of the lessee's improvements, 2) it must be based on the goal of equalizing rents on different tracts of land, and 3) it should be the same as that charged members on similar tracts of land.
In ordering FSTC to implement a new rent assessment system, the trial court proceeded under the theory that FSTC is a charitable corporation and that all lessees, non-members as well as members, are beneficiaries. The relief was ordered based on the finding of discrimination against non-member lessees in the determination of annual rents. Although this finding of fact is not contested, we find two reasons for concluding that the trial court abused its discretion in ordering the aforementioned relief.
First, FSTC is more in the nature of a commercial corporation than in the nature of a trustee of a charitable corporation. Second, as against FSTC, the rights of the non-member lessees are purely contractual. Hence, the non-member lessees' only available remedies are either money damages or specific performance. In their original brief, appellees argued that "[T]he trial court's action in regard to the rental policy of FSTC is justifiable under the ... alternative grounds of specific performance of a contractual right." Appellees further argue, because their contractual rights relate to real property and specific performance of a land contract is available within the discretion of the trial court, that the "allowance of [the] requested modification in FSTC [rent] policy was appropriate." We disagree.
Any right the non-member lessees may have to specific enforcement of their contract rights with regard to the determination of annual rentals would not go so far as ordering FSTC to make changes in its internal management. The trial court erred in ordering FSTC to appoint a "Rent Study Commission" and to implement a new rent assessment system. Moreover, with regard to alleged past discrimination, the only proper remedy would be money damages. As to the proper remedy to insure that FSTC will comply with its contractual obligation to assess lessees a fair annual rent, as previously outlined, the trial court can do no more than enforce the contract as written.
The trial court also ruled that "[T]he policy of FSTC whereby it restricts the sale of improvements by its lessees to a purchase price approved by FSTC is hereby declared void." Appellees argue that the order prohibiting such a restriction was justified and required by the FSTC Constitution and that they are unsure whether our original opinion reversed this aspect of the trial court's order.
Article 8, § 3, of the FSTC constitution provides that "[L]and leases shall convey full and absolute right ... to the ownership and disposition of all improvements made... thereon." The "Standard Lease Application" provides:
"I agree that ... [I will not] charge an excessive price out of any fair relation to the value of my improvements for transfer of an improved leasehold; and, recognizing that in the transfer of an improved leasehold there are necessarily two factors of value, one the improvements which are my property and the other the land upon which the same stand, which is not my property but the property of the Corporation, I agree to advise the Corporation, before a transfer of an improved leasehold shall be effective, of the exact consideration for the transaction and that the Corporation, if it believes the consideration to include in fact a profit for the transfer of the land which belongs to it, shall be entitled to examine me and the prospective purchaser as to the elements of value in the consideration and if satisfied that the consideration is in part for the possession of the land above the value of the improvements may refuse approval of the transfer; in which event I shall be entitled to call for an appraisal of the value of my improvements by three disinterested persons, myself and the Corporation each choosing one out of three persons named by the other and the third being selected by the two; and the Corporation shall be required to approve the transfer at such consideration as the arbitrators *1240 shall find to be the real value of my property, if accepted by me; it being understood and agreed that every factor of value attaching to the premises proposed to be transferred due to my efforts or expenditures, or in any way to my initiative which is transferable ... shall be held to inure to me as fully as tangible structures upon the land; the purpose being to protect the user and improver of land in the full ownership and right of transference of everything due to him, but to preserve to the Corporation all value due to demand for the land exclusive of improvements."
It is obvious from the foregoing provisions that FSTC has no right to dictate the price at which lessees are to sell the improvements on their leaseholds. FSTC's only interest and right is to see that the price received by a lessee on the transfer of his leasehold does not include consideration for the transfer of the land itself. In this regard, if FSTC believes that a lessee is in fact receiving consideration for the transfer of the land, it is obliged to proceed as the lease application provides. The trial court was, therefore, correct in ordering FSTC to cease its policy of requiring lessees to first get approval of the sale price of their improvements before transferring their leaseholds.
Under FSTC policy, clearing land is not considered an improvement for the purposes of subleasing it. In its conclusions of law, the trial court held that this policy, which prohibits a lessee from subletting such cleared land for any rental in excess of what FSTC charges the lessee, "is another violation of the lessee's right to the security of his improvements." The trial court ordered that "[T]he clearing of unimproved land by a lessee shall be considered an improvement by the lessee for all purposes."
The "Standard Lease Application" provides:
We hold that the trial court was correct in construing the foregoing provision to include the clearing of unimproved land.
In its conclusions of law, the trial court held that the monies derived from the sale or lease of mineral rights by FSTC are properly considered trust funds to be used for the benefit of all lessees. Appellees argue that this ruling is authorized in light of the FSTC constitution and lease agreements. We agree.
Article Eight, § 2, of the FSTC constitution provides that FSTC will "convert into the treasury of the Corporation for the common benefit of its members, all values attaching to such lands, not arising from the efforts and expenditures of the lessees." (Emphasis added.) The first clause of the agreements contained in the standard lease also provides that "all values attaching to such lands" (emphasis added) will be held for the common benefit of FSTC's lessees.
Bearing in mind the principle that a contract is construed most strongly against the party who drafted it, Rivers v. Oakwood College, 442 So. 2d 74 (Ala.1983), we hold that the trial court did not err in holding that monies derived from the sale or lease of mineral rights are trust funds to be used for the benefit of all lessees.
In its conclusions of law, the trial court also held that the adoption of the "Revised Standard Lease" was a breach of the contract FSTC had with each lessee *1241 under the standard lease to maintain a trust for the rent money received from all lessees for the equal benefit of all lessees. Although we did not directly address this question in our original opinion, we now hold, based on the express provisions of the standard lease, that the trial court did not err in concluding that FSTC had breached its contract with the lessees who hold lands under the standard lease. The standard lease states that FSTC will "convert into the treasury of the Corporation for the common benefit of its lessees all values attaching to such lands" and that "no parts of the rents paid by [the lessee] ... shall be appropriated as dividends to its members or any other persons, but that all shall be administered as a trust fund for the equal benefit of those leasing its lands." (Emphasis added.) We construe these provisions to grant the lessees under the standard lease the right to have all rents paid by all lessees administered as a trust fund for the benefit of all lessees.
APPLICATION FOR REHEARING OVERRULED; OPINION EXTENDED.
MADDOX, JONES, BEATTY, and STEAGALL, JJ., concur.
ALMON, J., not sitting.
[1] No question is presented in this case as to whether § 10-4-190 is constitutionally infirm in any manner such as a denial of equal protection.
[1] On original deliverance, we stated that we were applying the internal demand requirement as set forth in Rezner v. Fairhope Single Tax Corp., 292 Ala. 456, 296 So. 2d 166 (1974). A careful reading of Rezner reveals that this requirement was apparently applied to non-member lessees. We have gone to the record in Rezner and have determined that, in fact, the complainants who were deemed subject to the rule were both member and non-member lessees. Our decision on rehearing in this case overrules Rezner to the extent that the internal-demand requirement was made applicable to non-member lessees.
[2] The trial court found that the annual rental for land is the "fair rental value." This term is found in FSTC's "Declaration of Incorporation," which is not a part of the non-member lessees' lease contracts with FSTC. | September 11, 1987 |
5a51c4cc-9fba-4480-9957-9973c569ce66 | Jones v. Henderson | 513 So. 2d 1020 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 1020 (1987)
Mabel JONES, et al.,
v.
Randall D. HENDERSON and Katrina H. Henderson.
86-169.
Supreme Court of Alabama.
August 21, 1987.
*1021 Jerry F. Tucker, Ashville, for appellants.
Hugh E. Holladay of Hereford, Blair and Holladay, Pell City, for appellees.
MADDOX, Justice.
Mabel Jones, Louise J. Riker, Ralph H. Riker, and Harold W. Riker (appellants), filed a complaint against Randall Henderson and Katrina Henderson (appellees), seeking money damages and requesting injunctive relief to restrain the Hendersons from blocking or otherwise denying access to a right-of-way that the plaintiffs claim they were entitled to, either by deed or by adverse possession. The Hendersons denied the material allegations of the complaint and filed a counterclaim alleging that a dispute existed over the correct boundary between the parties. The Hendersons also claimed damages for the appellants' alleged trespass, and for mental distress.
The property of the Hendersons and the appellants was originally owned by Sam Jones, the father of appellants Mabel Jones and Louise J. Riker. The property now owned by the Hendersons was sold by Sam Jones to his brother, Doll Jones, who later conveyed the property to Dewey Jones and Carrie Mae Jones. Dewey and Carrie Mae Jones conveyed the property to Norman Jones and Imogene Jones, who then conveyed it to their son, Walter Jones. The Hendersons obtained possession of the property by warranty deed from Walter Jones and Sharon Jones.
Mabel Jones and Louise Riker own 62 acres of land that is north of and adjacent to the Hendersons' property. Mabel Jones and Louise J. Riker (along with three other family members) originally obtained possession of the property by inheritance from their father. They subsequently obtained possession to the entire 62 acres of the property by deed from the other family members.
In February 1986, the trial judge conducted an ore tenus hearing. At the hearing, the testimony showed that the disputed strip of property was originally used, as early as 1940, for access to a sawmill located on Sam Jones's property, but several witnesses testified that the strip of property had not been used as a right-of-way since the sawmill closed in the early 1940's. The Hendersons testified that the strip of property is part of their backyard and that they have maintained the property as such. They testified that they have used one end of the property for the parking of cars and have planted grass and flowers on it, piled firewood on it, and placed a swing on it. Other witnesses testified that the appellants had continuously used the strip of property since 1948. The appellants claimed to have used the disputed strip of property as often as five or six days a week during the summer months for access to their property.
Several weeks after the hearing, the trial judge visited the disputed strip of property, without giving the appellants' attorney notice or an opportunity to be present, but the attorney for the Hendersons was *1022 present when the trial judge viewed the properties. After viewing the property, the trial judge entered an order denying the appellants the relief they requested, and then issued an order setting the boundary between the parties' properties. The court ordered James McGinnis, a registered surveyor, to locate and place monuments fixing the boundaries of the parties' lands in accordance with his order. The court further ordered the appellants to remove a fence they had placed across the Hendersons' property and to do so within 30 days from the date of the decree.
The appellants filed a motion for a new trial, alleging that they were denied due process of law when the judge failed to give their attorney notice of the time set to view the property, and that the judgment was contrary to the law and evidence in the case. The trial court denied the motion for a new trial. This appeal followed.
The first issue raised is whether the appellants were denied due process of law when the judge, with the Hendersons' attorney present, viewed the property in dispute without notice or an opportunity for the appellants' attorney to be present. The appellants argue that the Hendersons' attorney was able to argue his case to the judge and that they were deprived of this opportunity.
The Hendersons essentially claim that the view by the trial judge, even if erroneous, was harmless. They contend that after the appellants filed their complaint, they were afforded the opportunity to conduct discovery, that they offered testimony and documentary evidence in support of their allegations, and that they cross-examined the Hendersons' witnesses; therefore, the Hendersons say, the appellants had their day in court and they were afforded every opportunity to be heard on their complaint.
This Court has stated many times that a trial court must provide due process for each party before it. Due process requires that a party receive notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing. Benton v. Alabama Board of Medical Examiners, 467 So. 2d 234 (Ala. 1985); Humane Society of Marshall County v. Adams, 439 So. 2d 150 (Ala. 1983); and Cooper v. Watts, 280 Ala. 236, 191 So. 2d 519 (1966). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Humane Society of Marshall County v. Adams, supra.
We are aware, as the Hendersons contend, that in a non-jury case, it is within the discretion of the trial judge to make an out-of-court viewing of the disputed property, and that there is no absolute requirement that the judge give the parties notice that he is going to view the property or to afford them an opportunity to be present. Mutual Service Funeral Homes v. Fehler, 257 Ala. 354, 58 So. 2d 770 (1952); C. Gamble, McElroy's Alabama Evidence, § 208.02 (3d ed. 1977). This Court, in Adalex Construction Co. v. Atkins, 214 Ala. 53, 106 So. 338 (1925), also stated:
214 Ala. at 56, 106 So. at 341.
While we recognize that a trial judge may view disputed property without giving the parties notice, or affording them an opportunity to be present at the viewing, we are of the opinion that the trial judge violated the fundamental requirements of due process when he gave notice, and an opportunity to be present, to one party, and did not give this same notice and opportunity to the other party, as he stated he would.
Because we reverse this case on the due process issue, we see no reason to address the other issues raised by the parties.
Accordingly, the judgment of the trial court is reversed and the case is remanded.
REVERSED AND REMANDED.
JONES, SHORES, BEATTY and HOUSTON, JJ., concur. | August 21, 1987 |
a4af4dd4-4f10-44f8-b544-26c5c6d5d93f | Handley v. Richards | 518 So. 2d 682 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 682 (1987)
Tommy HANDLEY, as Administrator Ad Litem of the Estate of Bobby Glenn Handley, Deceased
v.
James B. RICHARDS and Brenda Handley Richards.
85-841.
Supreme Court of Alabama.
September 4, 1987.
Rehearing Denied January 15, 1988.
*683 George M. Barnett, Guntersville, Bennett L. Pugh and J. Zach Higgs, Jr. of Higgs & Conchin, Huntsville, for appellant.
David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellees.
PER CURIAM.
The trial court's order, pursuant to Rule 12(b)(6), A.R.Civ.P., dismissing plaintiff's action for failure to state a cognizable claim, is affirmed
AFFIRMED.
JONES, ALMON, SHORES, BEATTY, HOUSTON, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., and MADDOX, J., concur specially.
MADDOX, Justice (concurring specially).
I agree completely that the judgment of the trial court should be affirmed, but because this case presents an issue never before decided in this state, I take this opportunity to express the reasons for my concurrence in the affirmance of the lower court's judgment.
This is a wrongful death case arising out of a suicide, allegedly caused by a minister's malpractice or "outrageous conduct" during counseling. The trial court entered a judgment in favor of the defendant, and the administrator of the deceased's estate appealed.
Bobby Lynn Handley, later replaced by Tommy Handley as administrator ad litem of the estate of Bobby Glenn Handley, filed this wrongful death action against Brenda Handley Richards and James B. Richards, alleging that Bobby Glenn Handley committed suicide because of the outrageous conduct and "clerical malpractice" of the defendant. Plaintiff claimed that Bobby Glenn Handley and his then-wife, Brenda Handley Richards, were experiencing marital problems, and had sought the counseling of defendant James B. Richards, their minister. Plaintiff alleges that while defendant James B. Richards was counseling Bobby Glenn Handley and Brenda Handley Richards, defendant James B. Richards and defendant Brenda Handley Richards were deeply involved in a sexual affair, and that as the marriage counseling continued, Brenda Handley Richards was attempting to procure a divorce from Bobby Glenn Handley. "[T]he plaintiff claims that the emotional toll of this marital tribulation combined with the deceitful manner of the counseling by James B. Richards caused [Bobby Glenn Handley] to take his life," and that the deceased's death resulted as a "proximate consequence of the outrageous conduct of the defendant, James B. Richards...."
Plaintiff amended his complaint, incorporating the same facts as alleged in the original complaint, and further averred that as a result of the mental strain upon Bobby Glenn Handley by the conduct of defendant Brenda Handley Richards, that Bobby Glenn Handley had attempted suicide by overdose of drugs, whereupon he was admitted to the psychiatric ward of a Huntsville hospital. Plaintiff claimed that Bobby Glenn was released against medical advice upon the demands of Brenda Handley Richards, and that Bobby Glenn thereafter committed suicide by hanging.
The issues on this appeal are whether the plaintiff stated a cause of action against the minister, James B. Richards, for clergyman malpractice and whether he stated a cause of action for the tort of "outrageous conduct." I agree with the majority that he did not.
I have been able to locate only two cases from other jurisdictions that discuss the liability of a minister for alleged clergyman malpractice in conducting pastoral counseling. The first case to advance the theory of clergyman malpractice, insofar as I am aware, was Nally v. Grace Community Church of the Valley, 157 Cal. App. 3d 912, 204 Cal. Rptr. 303 (1984). The other case is Hester v. Barnett, 723 S.W.2d 544 (Mo. App.1987), a case not cited by either party on appeal.
*684 Nally involved a suit by parents against a church and its pastors for the alleged wrongful death of their son, who committed suicide after counseling by the pastors. In that case, the parents alleged that their son had become depressed after a rift with his girlfriend, and that shortly afterward, he converted from Catholicism to Protestantism and became a communicant of the Grace Community Church, a fundamentalist sect. The boy attended a Bible institute at the church and counseled with the pastors frequently to discuss his problems with the girlfriend and with his family. His depression deepened, and, at the request of his mother, he consulted a physician, who placed him on antidepressant medication. Nally attempted suicide, and was hospitalized. Nally stayed at the home of one of the pastors after his release, to avoid tensions at home, and refused to keep psychiatric appointments because he believed psychiatrists were not Christians and would not be able to help him. A few days later, he committed suicide. A divided court authorized the action to be maintained in Nally. Nally is questionable authority. The California Supreme Court ordered that the opinion be "decertified" and be given publication without official status. Nally v. Grace Community Church of the Valley, 157 Cal. App. 3d 912, 204 Cal. Rptr. 303 (1984).
After remand, and at the trial, the Nally parents proceeded on the theory of clergyman malpractice for negligent counseling, and at the close of the presentation of that evidence the trial court granted a motion by the defendant church and its pastors for a nonsuit on the ground that to authorize a cause of action would violate the first amendment of the Constitution of the United States. A review of the judgment of nonsuit still is pending.[1]
In Hester v. Barnett, a husband and wife brought an action against the clergyman in which they alleged defamation, ministerial malpractice, alienation of affections, intentional infliction of emotional distress, invasion of privacy, and interference with contract. The trial court granted the minister's motion to dismiss, and on appeal the Missouri Court of Appeals held that: (1) Even assuming the existence of a clergyman malpractice remedy for negligent counseling, the allegation that the minister "acted contrary to ministerial ethics and against Missouri Law ... and against the standard of conduct imposed upon ministers of the gospel" did not allege a cause of action; (2) The plaintiff did state a cause of actionspousal alienation of affections; (3) There was a justiciable claim for defamation; (4) The complaint sufficiently pleaded a tort of unreasonable intrusion upon the seclusion of another; (5) The complaint pleaded a cause of action for a tortious interference with contract; and (6) The allegations of the complaint described secular conduct and hence stated a cause of action outside the scope of the Free Exercise Clause of the First Amendment.
Based on the same reasoning used by the Court in Hester v. Barnett, I believe that plaintiff's original complaint in this case failed to state a cause of action against the minister.
In Hester v. Barnett, the court wrote:
"* * *
"`The First amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.... On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts,freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.' [emphasis added]
"* * *
"`acted contrary to ministerial ethics and against Missouri law in particular Section 491.060(H)[sic, actually § 491.060(4), RSMo Cum.Supp.1987] and against the standard of conduct imposed upon ministers of the gospel....'
For a full discussion of the tort of clergyman malpractice, see Funston, Made out of Whole Cloth? A Constitutional Analysis of the Clergyman Malpractice Concept, 19 Cal.W.L.Rev. 507 (1983); Ericsson, Clergyman Malpractice: Ramifications of a *687 New Theory, 16 Val.L.Rev. 163, 166 (1981); Szasz, The Theology of Therapy: The Breach of the First Amendment Through the Medicalization of Morals, 5 N.Y.U. Rev. of Law and Social Change (1975); Bergman, Is the Cloth Unraveling? A First Look at Clergy Malpractice, 9 U.San Fern.V.L.Rev. 47 (1981).
The second legal question is whether the plaintiff alleged a cause of action for "outrageous conduct" as defined in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1981). I do not think so.
As pointed out in Hester v. Barnett, the intentional torts of a minister can be actionable, and I believe Alabama would follow a similar course, but under the facts of this case plaintiff has failed to state facts to show that the minister was guilty of "outrageous conduct."
Based on the foregoing, I agree that the original complaint against the minister, James B. Richards, fails to state a claim for clergyman malpractice or "outrageous conduct."
TORBERT, C.J., concurs.
[1] The chronicle of the lawsuit is reported by counsel for the Nally parents in Barker, Clergy Negligence: Are Juries Ready to Sit in Judgment?, Trial (July 1986). | September 4, 1987 |
37547057-9dbe-402b-a77b-b3ecf522cf4a | Coleman v. Gulf Life Ins. Co. | 514 So. 2d 944 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 944 (1987)
William COLEMAN
v.
GULF LIFE INSURANCE COMPANY and Timothy Webb.
86-222.
Supreme Court of Alabama.
September 18, 1987.
*945 Grover S. McLeod, Birmingham, for appellant.
Charles D. Stewart and Ann M. Watson of Spain, Gillon, Tate, Grooms & Blan, Birmingham, for appellees.
ADAMS, Justice.
This is an appeal from a summary judgment in favor of the defendants, Gulf Life Insurance Company and Timothy Webb. We affirm.
On January 11, 1984, Gulf Life Insurance Company, through its agent Timothy Webb, sold an accident insurance policy to the plaintiff, William Coleman. On March 24 of the same year, Coleman had an accident and required emergency hospital care. As a result of the accident he incurred expenses of $100.00. On March 26, 1984, Coleman met with Webb in order to file his claim for reimbursement. Pursuant to Webb's instruction, Coleman acquired statements from two physicians regarding his emergency care. Webb testified that he did not file Coleman's claim initially because the policy was a new one and had not yet appeared on the company's register. On May 8, 1984, Webb contacted Robert Tillery, his district manager, for advice in handling the claim. On that day, Tillery filed the claim with the home office, noting that it was on a policy that had not appeared on the company's register. Tillery then received a letter from the home office asking for a copy of the application and policy, because no record of Coleman's policy existed at the home office. Webb contacted Coleman in order to get a copy of the application and policy from him. On May 24, 1984, Webb picked up the policy from Gwendolyn Denish, Coleman's common-law wife. On June 18, 1984, a copy of the application and policy was sent to the home office.
On July 2, 1984, Coleman's policy appeared on the computer register. On July 16, 1984, Coleman filed suit against the *946 defendants, claiming $2 million for compensatory and punitive damages for misrepresentation and bad faith failure to pay his claim. On November 5, 1984, Gulf Life paid Coleman $103.50 on his claim for covered charges plus interest.
Coleman argues that the defendants were guilty of misrepresenting policy coverage. However, the policy specifically provided for the exact benefits claimed by Coleman. The policy provided in pertinent part the following:
Emergency Accident Benefits
1. while this policy is in force; and
(a) from a physician; or
(b) in an emergency room of a licensed hospital; and
3. the treatment is a direct and sole result of the injury.
In order to make a prima facie case for fraud, the plaintiff must show a false statement of a material fact, the plaintiff's reliance on that fact, and damage as a proximate result. Leo v. Neil, 480 So. 2d 572 (Ala.1985); Roney v. Ray, 436 So. 2d 875 (Ala.1983). In this case, no false representation existed. The policy provided the exact benefits as represented by Webb and understood by Coleman. Therefore, the trial court properly granted defendants' summary judgment motion as to the misrepresentation count.
Coleman argues that he made a prima facie case of bad faith failure to pay his claim; therefore, he argues, the trial court improperly granted defendants' motion for summary judgment as to that claim. In order to prove bad faith refusal to pay, the plaintiff must show:
National Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala. 1982).
In the present case, Gulf Life paid the claim. When the claim was filed on July 16, 1984, Gulf Life had not determined to refuse to pay Coleman's claim. Coleman argues that Gulf Life, through its agent Webb, had communicated to him a refusal to pay on the part of Gulf Life. On May 24, 1984, Webb met with Denish, Coleman's common-law wife. Webb told Denish that the insurance company did not have a record of Coleman's policy. Based on the lack of a policy, Webb told Denish the claim was being denied. During this conversation Denish gave Webb the policy in order for Webb to verify to Gulf Life that Coleman did indeed have a policy. Coleman argues that this representation by Webb acted as a denial of his claim by Gulf Life. However, in essence, Webb communicated that Coleman's claim was not being processed because Gulf Life did not have a copy of his policy.
"Moreover, this Court has made it abundantly clear that an action for bad faith lies only where the insurer has acted with an intent to injure." Blue Cross & Blue Shield v. Granger, 461 So. 2d 1320, 1327 (Ala.1984). In this case, Coleman has not shown any such intent on the part of Gulf Life. After the claim was filed, Tillery and Webb made efforts to facilitate the processing of Coleman's claim. While there was delay in the payment of the claim, Coleman filed suit prematurely. It was not until July 2, 1984, that his policy *947 appeared on the company's records; yet Coleman filed suit 14 days later, before receiving any communication from Gulf Life on his claim.
Coleman also argues that Gulf Life committed bad faith in the processing of his claim. Gulf Life paid his claim on November 5, 1984. He argues that this delay in payment of four months from the appearance of his policy on the company records, and eight months from the date he contacted Webb in order to file his claim, in and of itself shows bad faith on the part of Gulf Life. In Blue Cross, supra, the insured's claim was initially rejected because on the face of the claim it appeared that it could not be processed. It was over a year later before the claim was finally paid. In that case, computer error and other inefficiencies on the part of Blue Cross caused the valid claim to be mishandled. Even so, this Court concluded that, absent an intent on the part of Blue Cross not to investigate the claim, the tort action did not lie. Applying the reasoning in Blue Cross, we conclude that Coleman's suit must fail. We are not, however, deciding how much time must first pass in order to show that an insurance company has displayed bad faith in the investigation and processing of an insured's claim. Coleman has shown no wrongful intent, and the record does not support the finding of any such intent on the part of Gulf Life in the processing of Coleman's claim.
For the reasons set forth, the summary judgment in favor of the defendants is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES and STEAGALL, JJ., concur.
BEATTY and HOUSTON, JJ., concur in the result. | September 18, 1987 |
dfd2f998-b444-4b08-87b2-63e8d980f99a | Dobbs v. Smith | 514 So. 2d 871 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 871 (1987)
John N. DOBBS
v.
M.D. SMITH.
85-1206.
Supreme Court of Alabama.
September 4, 1987.
Ralph E. Coleman, Birmingham, for appellant.
Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellee.
ADAMS, Justice.
This is an appeal from a judgment based on a directed verdict in favor of the defendant, Dr. M.D. Smith. The plaintiff, John N. Dobbs, filed suit against Smith for malpractice in inserting an intraocular lens after a cataract operation. After hearing testimony from the witnesses, including Dobbs and Smith, the trial court granted Smith's motion because Dobbs had failed to make out a prima facie case. We affirm.
The facts of this case are as follows:
Smith is a specialist in ophthalmology. In 1975, he undertook training in the intraocular lens field in Yonworst, Holland. He treated glaucoma and cataracts, but only diagnosed detached retinas. At the time of the operation, he was on the staff of Holy Name of Jesus and Baptist Hospitals in Gadsden. In 1973, it was discovered that he had cataracts and glaucoma. His doctor in Anniston, after discovering he had cataracts and glaucoma, referred him to Smith. In November 1975, Smith informed Dobbs that his cataracts had progressed to the point that something needed to be done about them.
Dobbs went to the hospital on December 28, 1975, and his left eye was operated on the following day. During the surgery, the lens slipped sideways and fell into the eye and Smith retrieved it. Dobbs was originally scheduled to have his right eye operated on the following Wednesday; however, feeling that the first operation was unsuccessful, Dobbs cancelled the second operation. Dobbs testified that since the surgery he has suffered from photophobia and pain.
Smith discovered that Dobbs had a detached retina and referred him to Dr. Levene, *872 who sent him to Dr. Lavachek, who operated on the left eye. After Lavachek operated on him, Dobbs suffered a severe attack of glaucoma. Levene later operated on him and removed a cataract on the right eye and operated on both eyes for glaucoma. Dobbs testified that he knew that the operation performed by Smith might not be successful. He testified that he thought if it was unsuccessful, he could just wear contact lenses.
A directed verdict is proper where there is a complete absence of pleading or proof on an issue or issues material to a cause of action. Shellnut v. Randolph County Hospital, 469 So. 2d 632 (Ala.Civ.App.1985). The scintilla evidence rule applies to motions for directed verdict, as well as to motions for judgment notwithstanding the verdict. White v. Parker, 345 So. 2d 312 (Ala.Civ.App.1977). Therefore, a motion for directed verdict should not be granted if the plaintiff offers so much as a "mere gleam, glimmer, spark, the least evidence, the smallest trace or scintilla" of evidence supporting his theory of the complaint. Quillen v. Quillen, 388 So. 2d 985 (Ala. 1980). When a directed verdict motion is made, the evidence should be viewed in the light most favorable to the opposing party, and if a reasonable inference can be drawn against the moving party, then the trial court should deny the motion. Turner v. People's Bank of Pell City, 378 So. 2d 706 (Ala.1979).
The legal duty imposed upon the doctor is statutorily defined: "to exercise such reasonable care, diligence and skill as physicians, surgeons and dentists in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case." Code of Alabama (1975), § 6-5-484. Expert testimony is required to establish the standard of care that the doctor is alleged to have breached, Tant v. Women's Clinic, 382 So. 2d 1120 (Ala.1980), unless the lack of skill or care is so apparent as to be within the comprehension of the average layman. Rosemont, Inc. v. Marshall, 481 So. 2d 1126 (Ala.1986).
Dobbs cites Pappa v. Bonner, 268 Ala. 185, 105 So. 2d 87 (1958), for the proposition that the defendant himself can establish the expert testimony required in a medical negligence case. Although Smith can be viewed as an expert witness, he fulfilled that requirement only to the extent of his testimony. Dobbs did not offer any expert testimony to establish the standard of care and conduct that he alleged Smith deviated from. The record is void of any evidence that Dobbs's subsequent vision problems were the result of the surgery performed by Smith. In order to establish a physician's negligence, the plaintiff must offer expert medical testimony as to the proper practice, treatment, or procedure. Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So. 2d 156 (Ala.1984); Holt v. Godsil, 447 So. 2d 191 (Ala.1984). Dobbs failed to establish a standard of conduct and care by which Smith's conduct could be gauged. Further, he failed to establish that his injuries were proximately caused by a deviation from such standard; therefore, the trial court correctly granted Smith's motion for directed verdict and its judgment is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and SHORES and STEAGALL, JJ., concur.
JONES, J., concurs in the result. | September 4, 1987 |
9bb92d57-d18e-4a18-9071-c0f318dd7611 | Bowen v. Goodyear Tire & Rubber Co. | 516 So. 2d 570 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 570 (1987)
Malcolm BOWEN
v.
GOODYEAR TIRE & RUBBER COMPANY.
86-856.
Supreme Court of Alabama.
September 25, 1987.
As Corrected on Denial of Rehearing November 6, 1987.
*571 Myron K. Allenstein and Roy Moore, Gadsden, for appellant.
James D. Pruett of Pruett, Turnbach & Warren, Gadsden, for appellee.
HOUSTON, Justice.
Malcolm Bowen appeals from a summary judgment for the defendant, Goodyear Tire & Rubber Company, which was made final pursuant to Rule 54(b), A.R.Civ.P.
Bowen was an employee of Goodyear, and was on the job at a Goodyear manufacturing plant when he was hurt. Bowen filed an action for workmen's compensation benefits against Goodyear and said in his verified complaint that "[t]he plaintiff [Bowen] was heretofore employed by defendant [Goodyear] and they were subject to the workmen's compensation laws of Alabama. Plaintiff suffered an accident which arose out of, and in the course of plaintiff's employment by defendant...." In the original complaint, Bowen alleged that he was an employee of Goodyear and that his hand was injured in the course of his employment. This was amended to allege that Bowen was not injured as part of his employee-employer relationship with Goodyear. Bowen was an instrumentation technician. It was his job to repair and adjust the controls on certain machines at Goodyear's plant. He did not regularly work at the machine that caused his injury. However, he had worked on that machine a "good many times" in his position as instrumentation technician. The machine was owned by Goodyear, and it was in Goodyear's plant; Bowen was injured when he caught his hand in a roller on the machine.
Goodyear made the machine, in which Bowen caught his hand, for the exclusive use of Goodyear's employees.
The Workmen's Compensation Act of Alabama provides that the rights and remedies granted to an employee "shall exclude all other rights and remedies of said employee." Section 25-5-53, Code 1975.
This Court has recognized that the doctrine of dual capacity may remove the exclusivity of the Workmen's Compensation Act. Therrell v. Scott Paper Co., 428 So. 2d 33 (Ala.1983); Windham v. Blount International, Ltd., 423 So. 2d 194 (Ala.1982); Missildine v. Avondale Mills, Inc., 415 So. 2d 1040 (Ala.1981); Stone v. United States Steel Corp., 384 So. 2d 17 (Ala.1980); Mapson v. Montgomery White Trucks, Inc., 357 So. 2d 971 (Ala.1978). However, we have never been presented with a factual situation in which the doctrine could be applied.
Should the dual capacity doctrine apply under these facts?
Justice Shores in Therrell v. Scott Paper Co., supra, at 37, quoted with approval the following from McCormick v. Caterpillar Tractor Co., 85 Ill. 2d 352, 53 Ill.Dec. 207, 423 N.E.2d 876 (1981):
"The decisive test to determine if the dual-capacity doctrine is invocable is not whether the second function or capacity of the employer is different and separate from the first. Rather, the test is whether the employer's conduct in the second role or capacity has generated obligations that are unrelated to those flowing *572 from the company's or individual's first role as an employer. If the obligations are related, the doctrine is not applicable."
Providing safe "ways, works, machinery or plant connected with or used in the business" of the employer, is an obligation flowing to Bowen from Goodyear's role as an employer. See § 25-6-1(a)(1), Code of Alabama 1975. The fact that Goodyear manufactured the machine for the sole use of its employees does not change this obligation. Under the facts in this case the dual capacity doctrine has no application, and the exclusive remedy provisions of our Workmen's Compensation Act bar Bowen's claim against Goodyear. The trial court did not err in granting Goodyear's summary judgment, even under our stringent standard of review. Missildine v. Avondale Mills, Inc., supra, at 1041-42.
AFFIRMED.
MADDOX, JONES, SHORES, BEATTY and STEAGALL, JJ., concur.
ALMON, J., concurs in result. | November 6, 1987 |
7ba9e0e0-fe38-4c87-b04c-bf4bbda2fd3b | Lawson v. Williams | 514 So. 2d 882 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 882 (1987)
Mary L. LAWSON
v.
Albert L. WILLIAMS and Delana Williams.
86-329.
Supreme Court of Alabama.
September 4, 1987.
William L. Mathis, Jr., Birmingham, for appellant.
Thomas A. Woodall of Rives & Peterson, Birmingham, for appellees.
*883 ADAMS, Justice.
This is an appeal from a summary judgment in favor of the defendants, Albert L. Williams and Delana Williams, against the plaintiff, Mary L. Lawson. Lawson brought this action against the Williamses for injuries she suffered due to a slip and fall on the Williams property. The trial court granted the Williamses' motion for summary judgment because Lawson knew of the hazard prior to her fall. We affirm.
The Williamses employed Lawson as a housekeeper in October 1979. As a domestic servant, her duties involved baby sitting, house cleaning, and laundry work. On December 6, 1984, Lawson arrived at the Williams home and entered the house through the garage. She normally entered and departed through the back door. Lawson left the Williams home by the back door. When she left, she noticed leaves on the back step. It had not rained on December 6, but it had rained on December 5, and Lawson knew that fact. However, when she left, she stepped on the leaves and slipped and fell, suffering injuries to her ankle.
On appeal, Lawson argues that, although she was aware of the leaves being present, they looked dry and she did not know that they were wet and slippery underneath. Therefore, she argues, the trial court erred in granting summary judgment on the ground that she was aware of the hazard.
Domestic servants are invitees upon the premises of their employers. Sledge v. Carmichael, 366 So. 2d 1117 (Ala. 1979). The homeowner, the invitor, is not liable for injuries suffered by a domestic servant, the invitee, caused by a condition or danger which the domestic servant should have been aware of in the exercise of reasonable care. Quillen v. Quillen, 388 So. 2d 985 (Ala.1980). When the danger is obvious, the invitor cannot be held liable. Id. In this case, Lawson admits that she knew that rain had fallen the previous day, that leaves had accumulated on the doorstep, and that leaves when wet are slippery. There is no evidence that the Williamses improperly maintained the condition of their yard. No merit rests in Lawson's argument that the dry leaves on top of the wet ones in essence "fooled" her in regard to the condition. Her fall was the result of an accident for which the Williamses cannot be held responsible. Applying the requisite standard, we conclude that Lawson should have known that leaves accumulated after a rain would probably be wet and slippery.
Therefore, no merit exists in her claim, and the trial court correctly entered its judgment. For the reasons set forth, the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | September 4, 1987 |
e5d5b841-aab8-4690-9e9b-876ab71fef87 | Nelson Bros., Inc. v. Busby | 513 So. 2d 1015 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 1015 (1987)
NELSON BROTHERS, INC.
v.
Christine BUSBY, et al.
85-1355.
Supreme Court of Alabama.
August 21, 1987.
*1016 Edward R. Jackson and Richard E. Fikes of Tweedy, Jackson & Beech, Jasper, for appellant.
Robert T. Wilson and Kerri J. Wilson of Wilson & King, Jasper, for appellees.
HOUSTON, Justice.
The plaintiffs, who were property owners in Walker County, Alabama, brought suit against Gayosa Coal Company, Inc., Nelson Brothers, Inc., and the University of Alabama, for damage to plaintiffs' homes allegedly caused by blasting. The University of Alabama was dismissed. The plaintiffs reached a pro tanto settlement with Gayosa whereby Gayosa paid $9,375.00 damages as to each home.[1] Plaintiffs then proceeded to trial against Nelson Brothers only on counts of trespass, negligence, wantonness, and engaging in abnormally dangerous activity. The jury returned verdicts for the plaintiffs for $9,375.00 in compensatory damages for each house. Nelson Brothers did not file a post-trial motion for J.N.O.V. but did file a motion for a new trial, which was denied. Nelson Brothers appeals. We affirm.
During the course of the trial, the parties introduced conflicting testimony and other evidence regarding the existence and amount of damage to the plaintiffs' homes; regarding the number and dates of the "shots" put off by Nelson Brothers; regarding the nature, degree, and amount of technical assistance that Nelson Brothers provided to Gayosa on Gayosa's "shots"; and regarding the accuracy of the blasting log.
The first issue presented for review is whether it was reversible error for the trial court to give the following instruction on concurrent negligence:
The oral charge contains other instructions on concurrent negligence; however, Nelson Brothers contends that it objected to the portion of the oral charge set out above.
Plaintiffs contend that Nelson Brothers did not object to the trial court's charge on concurrent negligence and that Nelson *1017 Brothers waived any error by failing to object and to state its ground for objection.
In Louisville & N.R.R. v. Garrett, 378 So. 2d 668, 673-74 (Ala.1979), we wrote:
"`No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.' [Emphasis added in Garrett.]
Failure to object before the jury retires precludes raising the alleged error on appeal. Hancock v. City of Montgomery, 428 So. 2d 29 (Ala.1983).
Nelson Brothers contends that the following objection made by it was sufficient to preserve the issue for appeal:
This is not a proper objection to the charge on concurrent negligence. Nor is the ground that "it attempts to emphasize something that ... Nelson Brothers may not be responsible for in anywise" a proper ground for such objection.
Further, we are persuaded that the evidence introduced presented a jury question as to the combining and concurring negligence of Nelson Brothers and Gayosa.
A tort-feasor whose negligent act or acts proximately contribute in causing an injury may be held liable for the entire resulting loss. Beloit Corp. v. Harrell, 339 So. 2d 992, 995 (Ala.1976); Butler v. Olshan, 280 Ala. 181, 191 So. 2d 7 (1966); see also Prosser, Law of Torts, at 291-323 (4th ed. 1971), and Restatement Second of Torts § 879 (1979) ("If the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irrespective of whether their conduct is concurring or consecutive").
After studying Nelson Brothers' briefs, we believe that its problem with the oral charge was not with what the trial court gave, but with what it failed to give.
"`Where there is evidence as to damage from various causes, as to a portion of which defendant cannot be held responsible, and no evidence as to the portion of the damages resulting from the separate causes, the proof is too uncertain to permit the jury arbitrarily to apportion a part or all of the proved damages to the act for which defendant is responsible.'"
Kershaw Mining Co. v. Lankford, 213 Ala. 630, 105 So. 896, 897 (1925), quoting 17 Corpus Juris 758.
Nelson Brothers' stated ground of objection (i.e., "it attempts to emphasize something that the ..., defendant, Nelson Brothers, may not be responsible for in anywise") was not sufficiently clear to call the trial court's attention to this omitted rule of law.
Nelson Brothers next contends that the jury award of damages to the plaintiffs is based on conjecture and speculation. There was evidence that the cause of the plaintiffs' damage was blasting by Gayosa and Nelson Brothers. All plaintiffs presented evidence of the fair market value of their property before and after the blasting. The proper measure of damages for property injury in a tort action is the difference between the fair market value of the property before the injury and the fair market value after the injury. Dooley v. Ard Oil Co., 444 So. 2d 847 (Ala.1983).
*1018 There was evidence that each home sustained at least $20,000.00 in damages.
Nelson Brothers argues the sufficiency of the evidence; however, since it did not file a motion for J.N.O.V., it has not preserved the right to attack the sufficiency of the evidence in its jury trial in this appeal. Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877 (Ala.1979). Evidentiary challenges, except on grounds of admissibility, are divided into two separate and distinct categories: sufficiency of the evidence raised by motions for J.N.O.V. and measured by the "scintilla" evidence rule; and weight and preponderance of the evidence raised by a motion for a new trial and measured by the "palpably wrong and manifestly unjust" standard. Burroughs Corp. v. Hall Affiliates, Inc., 423 So. 2d 1348 (Ala.1982).
Our standard of review is whether the jury verdict, which we assume to be correct, is so against the great weight of the evidence that it is palpably wrong and manifestly unjust.
The jury's verdict was $9,375.00 for each home. This was less than the evidence of the damage to each home after discounting the amount received from Gayosa. The trial court gave the following instruction, to which there was no objection:
There was evidence to support the amount of the jury's verdict, and the trial court charged that the verdict could not be based on mere speculation or conjecture and that the jury must deduct the amount the plaintiffs had received from Gayosa from the total amount of damage sustained by the plaintiffs. We cannot hold that the jury verdict is so against the weight of the evidence that it is palpably wrong and manifestly unjust.
Nelson Brothers, in support of its contention that the damages were based on conjecture and speculation, writes: "The law cannot be that where the plaintiff is unable to prove which defendant proximately caused the damage that the plaintiff is therefore entitled to recover against any of the defendants." The law is what Nelson Brothers states that it cannot be. In Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1, 3 (1948), the textbook case on this point of law, the Supreme Court of California wrote:
In Beloit Corp. v. Harrell, supra, at 995, Justice Jones wrote:
Nelson Brothers' next issue is: "Did the trial court commit reversible error by failing to give the Appellant's Requested Jury Charge Number 34?" That requested charge is as follows:
Mr. Justice Somerville in Kershaw Mining Co. v. Lankford, 213 Ala. 630, 105 So. 896, 897 (Ala.1925), quoted the following from 17 Corpus Juris 758:
"Where there is evidence as to damage from various causes, as to a portion of which defendant cannot be held responsible, and no evidence as to the portion of the damages resulting from the separate causes, the proof is too uncertain to permit the jury arbitrarily to apportion a part or all of the proved damages to the act for which defendant is responsible." (emphasis supplied)
Though this statement is dictum in Kershaw Mining, and Justice Somerville acknowledged that he was calling attention to *1020 these principles in order that they may be given due application on another trial, it is the law. However, it was not reversible error for the trial court to refuse to give requested Charge 34 because the last sentence of that requested charge does not correctly state the law. "[T]hat Gayosa was responsible for some of the damages" does not negate the fact that Nelson Brothers could also be responsible for those same damages under the doctrine of concurrent negligence. If so, then there is no need for evidence as to the portion of the damages resulting from the separate causes, for there are no "separate causes," and by authority of Beloit Corp. v. Harrell, supra, or Summers v. Tice, supra, Nelson Brothers could be held liable for the entire resulting loss. It is not reversible error for the trial court to refuse an erroneous, misleading, or confusing requested charge. Harris v. Martin, 271 Ala. 52, 122 So. 2d 116 (1960).
Nelson Brothers' last issues concern the trial court's permitting Steve Jordan to testify as an expert witness. The question of whether a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, whose decision will not be disturbed on appeal except for palpable abuse. Burroughs Corp. v. Hall Affiliates, Inc., 423 So. 2d 1348 (Ala.1982). Jordan was an engineering geologist trained in the use of explosives. He had taught basics about blasting at the University of Alabama in Birmingham. He has some on-the-job blasting experience. We are persuaded that Jordan had expertise and knowledge beyond that of the average lay person, which could have been helpful to the jury. Jordan had testified as an expert in Alabama Power Co. v. Cummings, 466 So. 2d 99 (Ala. 1985), where his opinion was determined by this Court to constitute competent evidence as to the cause of injury in a land subsidence case. The trial court did not abuse its discretion in permitting Jordan to testify as an expert.
Nelson Brothers also argues that Jordan should not have been allowed to testify as to inconsistencies in the blasting log. Jordan testified that the condition of the blasting log was important to him in rendering his opinion. Jordan had to perform calculations to uncover certain of the inconsistencies, some of which were found as dates on which the log entries were signed by the Nelson Brothers blaster or were noted "Nelson Brothers shot." We cannot say that this testimony is in the realm of knowledge of the average lay person or that it was not helpful to the jury. Wal-Mart Stores, Inc. v. White, 476 So. 2d 614 (Ala.1985). There was no error in permitting Jordan to testify as to these inconsistencies.
Having reviewed all of the issues raised by Nelson Brothers, we are of the opinion that the judgment should be affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur.
[1] Some of the plaintiffs were husbands and wives who jointly owned the home that was allegedly damaged. One plaintiff, James S. Tittle, died and his widow, Ola Hayes Tittle, was substituted as a party plaintiff. Her case was severed for trial at a later date. | August 21, 1987 |
7da6f539-27be-4967-8afc-fa68f41738d9 | Ex Parte Caffie | 516 So. 2d 831 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 831 (1987)
Ex parte Francis CAFFIE.
(Re: Francis Caffie v. State of Alabama).
86-361.
Supreme Court of Alabama.
September 11, 1987.
Rehearing Denied November 6, 1987.
Wilson M. Hawkins, Jr., Mobile, for petitioner.
Charles A. Graddick and Don Siegelman, Attys. Gen., and Beth Slate Poe, Asst. Atty. Gen., for respondent.
HOUSTON, Justice.
We granted the writ to address the issue of whether the exclusionary rule applies in probation revocation hearings. We hold that, absent egregious circumstances, the exclusionary rule is inapplicable in the context of a probation revocation proceeding, and we therefore affirm the judgment of the Court of Criminal Appeals, 516 So. 2d 822 (1986).
In 1981, petitioner Francis Caffie pleaded guilty, in the District Court of Mobile County, to one charge of possession of marijuana for personal use, two charges of sale of marijuana, and one charge of receiving stolen property in the second degree. Imposition of sentence was suspended and the petitioner was placed on probation for three years. In 1983, the petitioner was indicted and subsequently convicted for possession of marijuana and hydromorphone *832 hydrochloride. For purposes of the probation revocation hearing, the parties stipulated that the same evidence presented in petitioner's trial for possession of marijuana and hydromorphone hydrochloride would be presented in the probation revocation proceeding. Thereafter, following a hearing, the petitioner's probation in the four prior cases, as detailed above, was revoked. Subsequent to the revocation of his probation, the petitioner appealed his conviction for possession of marijuana and hydromorphone hydrochloride and also the revocation of his probation to the Court of Criminal Appeals. The Court of Criminal Appeals reversed his conviction for possession of the controlled substances because the conviction was had as a result of an illegal search and arrest, but affirmed the revocation of his probation. Caffie petitioned this Court for a writ of certiorari, contending that the Court of Criminal Appeals erred in holding that the exclusionary rule does not apply in probation revocation hearings and arguing that the evidence presented was insufficient to justify a revocation of his probation.
In reviewing the petitioner's contentions, it is necessary to consider the purpose of the exclusionary rule and the purpose and nature of probation and a probation revocation hearing.
"`[T]he ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.' Linkletter v. Walker, 381 U.S. 618, 637, 85 S. Ct. 1731, 1742, 14 L. Ed. 2d 601 (1965).
"`The rule is calculated to prevent, not to repair. Its purpose is to deterto compel respect for the constitutional guaranty in the only effectively available wayby removing the incentive to disregard it.' Elkins v. United States 364 U.S. 206, 217, 80 S. Ct. 1437, 1444, 4 L. Ed. 2d 1669 (1960).
United States v. Calandra, 414 U.S. 338, 347-48, 94 S. Ct. 613, 619-20, 38 L. Ed. 2d 561 (1974). (Footnote omitted).
Thompson v. United States, 444 A.2d 972 (D.C.Ct.App.1982).
The purpose and nature of probation is addressed in Griffin v. Wisconsin, ___ U.S. ___, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987), wherein Justice Scalia wrote:
___ U.S. at ___, 107 S. Ct. at 3168 (Footnote omitted).
At this point, it is important to address the question of what process a probationer is due in a probation revocation proceeding. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), the United States Supreme Court found the due process requirements of parole revocation proceedings set out in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), to be applicable to probation revocation hearings. Due process does not require the full range of evidentiary and procedural safeguards found in criminal prosecutions, because "the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissable in an adversary criminal trial." Morrissey v. Brewer, 408 U.S. at 489, 92 S. Ct. at 2604. The Supreme Court also noted that the full panoply of rights does not apply because "[r]evocation deprives an individual not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on the observance of special [probation] restrictions." 408 U.S. at 480, 92 S. Ct. at 2600.
In Alabama, strict rules of evidence are not required to be observed in revocation hearings, and evidence that may not be admissible in a criminal prosecution may be admissible in parole or probation proceedings. Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975).
"`There is no definite criterion or measure of proof necessary to justify the revocation of one's probation.' Wright v. State, 349 So. 2d 124 (Ala.Cr.App.1977). The evidence need not `be strong enough *834 to convince the court beyond a reasonable doubt that the probationer has violated a term of his probation,' Carter v. State 389 So. 2d 601 (Ala.Cr.App.1980); it needs only to reasonably satisfy the court of the truth of the charge. Goodrum v. State, 418 So. 2d 942 (Ala.Cr.App. 1982). Absent a gross abuse of discretion, the trial court's ruling in a probation revocation will not be disturbed by this Court. Wright, supra."
Rice v. State, 429 So. 2d 686, 687 (Ala.Cr. App.1983).
Morrissey, 408 U.S. at 482, 92 S. Ct. at 2601.
The "stages" of the process that is due are set forth in Morrissey, supra. In writing Morrissey, the Supreme Court bore in mind that the interests of both the state and the probationer will be furthered by an effective but informal hearing. The Court emphasized that it did not intend to equate the "second stage" of parole revocation to a criminal prosecution.
"[T]he State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole." Morrissey, 408 U.S. at 483, 92 S. Ct. at 2601.
The precise question before us is whether evidence seized incident to an illegal search and arrest was improperly considered at the petitioner's probation revocation hearing.
When faced with that question, we must apply the balance-of-interests analysis utilized by the Supreme Court in determining whether to extend the exclusionary rule. In United States v. Calandra, supra, the Court, when faced with the question of whether the exclusionary rule should be extended to grand jury proceedings, stated: "In deciding whether to extend the exclusionary rule to grand jury proceedings, we must weigh the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context." 414 U.S. at 349, 94 S. Ct. at 620. This balancing test has been reaffirmed by the Supreme Court in subsequent decisions, see Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), United States v. Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976), and has been applied as well by courts of appeals dealing with the present issue, see, e.g., United States v. Winsett, 518 F.2d 51 (9th Cir.1975) (minimal deterrent effect of extending exclusionary rule to probation revocation proceedings outweighed by dangers the rule would pose to probation system); United States v. Workman, 585 F.2d 1205 (4th Cir.1978) (applying Calandra balancing test to conclude that exclusionary rule does apply to probation revocation proceedings).
Accordingly, in determining whether to apply the exclusionary rule to probation revocation proceedings, we must weigh the potential benefit that would resultdeterrence of police misconductagainst the potential harm to the "fact-finding" process of the probation revocation system.
The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens "to be secure in their persons, houses, papers, and effects, against *835 unreasonable searches and seizures." Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
In United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the Court laid to rest the notion that the exclusionary rule is a necessary corollary of the Fourth Amendment or that the rule is required by the conjunction of the Fourth and Fifth Amendments. It stated:
468 U.S. at 906, 104 S. Ct. at 3411-12.
United States v. Winsett, 518 F.2d 51 at 53 (9th Cir.1975).
Having weighed the potential benefits against the potential injury to the "factfinding" process of the probation revocation proceeding, we are of the opinion that the deterrent purpose of the exclusionary rule is adequately served by the exclusion of the unlawfully seized evidence in the criminal prosecution. The chance of achieving a deterrent effect in this case, through the application of the exclusionary rule to the probation revocation proceeding, is "speculative or marginal at best." "It is unrealistic to assume that application of the rule to probation revocation proceedings would significantly further the goal of the exclusionary rule. Such an extension of the exclusionary rule to these proceedings would deter only police searches and arrests consciously directed toward probationers." Winsett, supra, at 54. There is no evidence in this case that the police officers were aware at the time of the *836 search or arrest that the petitioner was a probationer.
"A [probation] revocation proceeding is concerned not only with protecting society, but also, and most importantly, with rehabilitating and restoring to useful lives those placed in the custody of [our correctional systems.] To apply the exclusionary rule to [probation] revocation proceedings would tend to obstruct the [probation] system in accomplishing its remedial purposes." Sperling, at 1163.
State v. Kissell, 83 Or.App. 630, 635-36, 732 P.2d 940, 942 (1987), review dismissed, 303 Or. 369, 736 P.2d 564 (1987).
For the foregoing reasons, we find the potential benefits of extending the exclusionary rule to probation revocation proceedings to be significantly outweighed by the potential damage to the probation system.
Notedly, under certain circumstances, consideration may weigh in favor of the extension of the exclusionary rule to probation revocation proceedings. For example, where illegal acts of the police were directed specifically at a probationer or where they shock the conscience, the deterrent effect that exclusion of such evidence would have outweighs the need of the sentencing court for full and and reliable information. See, United States v. Wiygul, 578 F.2d 577 (5th Cir.1978); Winsett, supra; United States v. Farmer, 512 F.2d 160 (6th Cir.), cert. denied, 423 U.S. 987, 96 S. Ct. 397, 46 L. Ed. 2d 305 (1975); State v. Davis, 375 So. 2d 69 (La.1979).
The petitioner's second claim is that the lower court erred in finding that he was in violation of his probation. We disagree.
The standard of review of an order revoking probation
Armstrong v. State, 55 Ala.App. 37, at 45, 312 So. 2d 607, at 615 (Ala.Crim.App.1974).
Accordingly, the fact that the petitioner's conviction was reversed subsequent to the revocation of his probation is of no consequence in the present case, because the trial court was reasonably satisfied from the evidence that the petitioner was in violation of his probation.
Armstrong, supra, 55 Ala.App. at 46, 312 So. 2d at 616.
We have reviewed the record and, in light of our decision on the petitioner's first claim of error, we find that there was sufficient evidence to justify the trial court in finding that the petitioner had violated the *837 terms of his probation. Therefore, the judgment of the Court of Criminal Appeals was correct.
AFFIRMED.
MADDOX, BEATTY and STEAGALL, JJ., concur.
JONES, SHORES and ADAMS, JJ., concur in result.
TORBERT, C.J., and ALMON, J., not sitting.
HOUSTON, Justice.
In his application for rehearing, the petitioner argues that we inadequately considered the mandates of our state constitution in holding that the exclusionary rule did not apply to probation revocation proceedings. We write to clarify our position on this issue.
The petitioner contends that the Constitution of Alabama requires that the exclusionary rule be applied in probation revocation proceedings, even if the Fourth Amendment of the Constitution of the United States does not. We disagree.
The petitioner places primary emphasis on section 5 of our state constitution, which provides:
Ala. Const. of 1901, art. I, § 5. This declaration of the right to be free from unreasonable searches and seizures is clearly analogous to the right afforded under the Fourth Amendment of the Constitution of the United States, and it obviously protects similar, if not identical, interests. Accordingly, the analysis previously applied in regard to the federal right is equally valid when applied to the similar state right. Cf., Ex parte Jackson, 516 So. 2d 768 (Ala. 1986) (state equal protection provisions afford protection against racially motivated peremptory strikes similar to that afforded by the federal constitution).
We therefore hold that, absent egregious circumstances, our state constitution, like the federal constitution, does not require that the exclusionary rule be applied in probation revocation proceedings.
In reaching this conclusion, we do not mean to imply that there is, of necessity, a one-to-one correspondence between the protections afforded by our state constitution and those afforded by the federal constitution. To the contrary, it is well-recognized that rights under state constitutions, including rights very similar to those protected by the federal constitution, are sometimes regarded as being more extensive than their federal counterparts. See, e.g., Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489 (1977); Morgan, Fundamental State Rights: A New Basis for Strict Scrutiny in Federal Equal Protection Review, 17 Ga.L.Rev. 77 (1982). We hold only that a similar analysis and result obtain under both the state and the federal constitution on the issues raised in this case.
OPINION EXTENDED; APPLICATION OVERRULED.
MADDOX, BEATTY and STEAGALL, JJ., concur.
JONES, SHORES and ADAMS, JJ., concur in result.
TORBERT, C.J., and ALMON, J., not sitting. | September 11, 1987 |
763205e0-ee10-4f36-8e21-4e135c51faa1 | OH BY TEB v. Ballard Realty Co. | 516 So. 2d 519 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 519 (1987)
O.H., a minor who sues By and Through his guardian and next friend, T.E.B.
v.
BALLARD REALTY COMPANY and Bayou Bend, Ltd.
86-166.
Supreme Court of Alabama.
August 21, 1987.
Rehearing Denied November 20, 1987.
William B. Jackson, II of Hess, Atchison & Horne, Mobile, for appellant.
Cynthia Cargile McMeans of Brown, Hudgens, Richardson, Mobile, for appellee Ballard Realty Co.
*520 Cooper C. Thurber and Charles L. Miller, Jr. of Lyons, Pipes & Cook, Mobile, for appellee Bayou Bend, Ltd.
MADDOX, Justice.
This is an appeal from a summary judgment entered against O.H., a minor, who brought suit by and through his next friend and guardian, T.E.B.
On June 11, 1982, the minor, then 11 years old, was allegedly assaulted and sexually molested near Bayou Bend Apartments by a third party, a former resident of Bayou Bend. The minor, who is mildly mentally retarded, was apparently enticed from the swimming pool of the complex to a wooded area nearby, where the assault occurred. At that time, the minor was living at the complex with his half-sister's father.
The minor filed suit against Ballard Realty, the management company operating Bayou Bend at the time of the assault, and against the owners of Bayou Bend. The plaintiff alleged negligence, wantonness, and fraud in the maintenance of security measures for the protection of the residents. The trial judge granted the defendant's motion for summary judgment, and the plaintiff brings this appeal.
The issue before this Court is whether, under the facts of this case, the defendants owed a duty to protect the plaintiff from this type of attack.
The law applicable to this case is contained mainly in cases that involve storeowners and their duty to customers to prevent third-party attacks. In Ortell v. Spencer Companies, 477 So. 2d 299 (Ala. 1985), this Court stated:
In the case at bar, plaintiff contends that the defendants had actual or constructive knowledge of the danger and that the defendants made misrepresentations concerning the security of the complex.
As to security of the apartments, it appears from the record that some representations were made by employees of Ballard. Apparently, the person with whom the minor was living inquired concerning the history of crime in the area. The security representations that were made in response to this inquiry concerned the frequency of property crimes in the area, and the availability of some type of security person.
The appellant's contention that the defendants had actual or constructive knowledge that criminal activity that would probably endanger an invitee, is based upon the existence of rumors concerning the alleged assailant. The alleged assailant was evicted from Bayou Bend for non-payment of rent and for possession of a marijuana plant. After his eviction, this person spent a significant amount of time in and around the apartment complex, apparently visiting friends. Rumors concerning the alleged assailant's following children around the complex circulated among the residents, but the evidence is not clear regarding the extent of the management's knowledge of these. There was no independent proof presented that the alleged assailant had actually molested other children. The testimony concerning the rumors was the only evidence presented in this regard.
We are of the opinion that the mere existence of rumors and generalized statements concerning security does not create *521 a duty to protect a party from a sexual assault committed by a third party.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
JONES, SHORES, BEATTY and HOUSTON, JJ., concur. | August 21, 1987 |
7a4262a7-cbb3-45b4-898d-cd518ba6de75 | King v. Travelers Ins. Co. | 513 So. 2d 1023 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 1023 (1987)
James W. KING
v.
The TRAVELERS INSURANCE COMPANY, et al.
Mrs. James W. KING
v.
The TRAVELERS INSURANCE COMPANY, et al.
86-667, 86-668.
Supreme Court of Alabama.
August 21, 1987.
*1024 Stanley E. Munsey, of Munsey & Ford, Tuscumbia, for appellants.
Robert L. Gonce, of Gonce, Young & Westbrook, Florence, for appellee The Travelers Insurance Co.
John S. Key and William L. Middleton, of Eyster, Key, Tubb, Weaver & Roth, Decatur, for individual coemployee defendants.
HOUSTON, Justice.
James W. King, who was an employee of Reynolds Metals Company, sustained injuries arising out of an accident that occurred while he was performing his job for Reynolds. King and his wife filed a suit (Case No. CV 85-09 in the Circuit Court of Colbert County, Alabama) against The Travelers Insurance Company, Inc., Reynolds's workmen's compensation carrier (alleging that Travelers had negligently and wantonly failed to properly perform inspection and safety engineering services it had undertaken to perform) and against eight of King's co-employees. The accident occurred on or about October 28, 1984. In Count One, King sought to recover for the following personal injuries:
In Count Two, Mrs. King sought to recover for her loss of King's services and consortium. After responsive pleading by the defendants, the attorney of record for the Kings hand delivered a settlement offer to an attorney of record for some of the defendants, who had authority to negotiate a settlement for all of the defendants. These attorneys had been attempting to settle this entire case for several months. This offer was accepted by the attorney for the defendants 11 days after the offer was made. After the offer was accepted, the Kings decided that they did not want to settle for the amount negotiated by their attorney of record. The defendants filed a motion for entry of judgment pursuant to a settlement agreement of the parties, attaching the September 4, 1986, offer by the plaintiffs[1] and the September 15, 1986, acceptance by the defendants.[2]
*1025 The Kings filed a response to the motion for entry of judgment pursuant to the settlement agreement of the parties, which states in part as follows:
The only issue before the trial court in regard to the defendants' motion for entry of judgment pursuant to the settlement agreement of the parties was whether the offer of September 4, 1986, had been rejected.
The trial court set the defendants' motion for hearing and heard ore tenus evidence from the parties, including testimony from the Kings' attorney and the defendants' attorney. On December 4, 1986, the trial court found that the parties entered into a binding contract, ratified the settlement agreement of the parties, and ordered the parties to comply therewith. Mr. King filed a motion to reconsider. The trial court entered an order stating that the court would not hear further testimony and was treating the motion to reconsider as a motion for new trial.
Thereafter, Mrs. King filed a motion pursuant to Rule 60, Ala.R.Civ.P., for a correction of the court's judgment. Mrs. King took the position that the judgment applied only to Mr. King. The trial court dismissed the entire case with prejudice as to all *1026 defendants in accordance with the settlement agreement of the parties. The Kings filed a motion to set aside this order dismissing the case. The trial court entered an order denying the Kings' motions for new trial and for reconsideration and specifically stated that its order of December 4, 1986, included and encompassed the claims of Mr. and Mrs. King. The Kings appeal. We affirm.
The evidence in regard to whether there was a rejection of the Kings' offer or a counter-offer made by the defendants was presented ore tenus to the trial court. Our standard of review where the trial court has heard ore tenus testimony is that we will presume that the trial court's judgment is correct and that it will be reversed only if the judgment is found to be plainly and palpably wrong after a consideration of all of the evidence and after making all inferences that can logically be made from the evidence. Robinson v. Hamilton, 496 So. 2d 8 (Ala.1986). The evidence was in dispute in regard to whether there was a rejection or a counter-offer made in response to the Kings' offer. The attorney for the defendants who handled the "settlement" testified that there was no rejection or counter-offer, only an inquiry as to whether the plaintiffs would consider a structured settlement with a different payment arrangement. The trial court apparently believed that testimony; it found for the defendants and granted their motion for entry of judgment pursuant to the settlement agreement. This was not plainly and palpably wrong.
Mere inquiries or suggestions will not terminate an offer. 1 Williston on Contracts, § 79 at 263 (1957). In Jaybe Construction Co. v. Beco, Inc., 3 Conn.Cir.Ct. 406, 216 A.2d 208 (1965), it was noted that a mere inquiry as to whether one proposing a contract will alter or modify its terms does not amount to a rejection. See, also, 1 Corbin, Contracts, § 93, at 388-89 (1963), which states:
We have stated that agreements made in settlement of litigation are as binding on the parties as any other contracts. Brocato v. Brocato, 332 So. 2d 722 (Ala.1976). Section 34-3-21, Code of Alabama 1975, as amended, vests in an attorney authority to bind his or her client in all matters that relate to the cause, including the right to settle all questions involved in the case. Such agreements are not only authorized, but encouraged, to promote justice and fair dealing and to terminate properly or prevent litigation. Brocato v. Brocato, supra. Under the proposed settlement agreement, all of Mr. King's past and future medical expenses necessitated by his injuries will be paid and, in addition, the Kings are guaranteed $660,000 to be paid over a 30-year period, with $150,000 being paid at the time of settlement. We cannot say that this settlement was unjust or unfair for 38-year-old Mr. King and his wife.
In the September 4 settlement offer, the following appeared: "Please try to respond to this offer by tomorrow." This does not set a time limit for when an acceptance must be made. Defendants' attorney did respond by telephone the next day, and there is substantial evidence in the record that the offer was never withdrawn and remained open until the defendants' *1027 letter of acceptance was delivered to the Kings' attorney on September 15.
Seven days after the offer was made, the Kings' attorney treated the offer as still being open, for on September 11 he told defendants' attorney that if the case was to be disposed of the defendants needed to do something about the offer. The Kings' attorney testified that his written offer was never withdrawn prior to the defendants' accepting it.
The trial court found that the offer and acceptance included Mrs. King and constituted a settlement of the entire lawsuit. There is evidence in the record to support this finding. Defendants' attorney testified that the parties were negotiating a full and complete settlement of the lawsuit to resolve the entire case, including Mrs. King's claim. In the Kings' response to the motion for entry of judgment pursuant to the settlement agreement, which is hereinbefore set out, the Kings conceded that the offer included the claims of both plaintiffs and that the only issue to be tried was whether the offer had been rejected by the defendants. This finding by the trial court is not plainly and palpably wrong, but is supported by evidence in the record.
The Kings' last issue is: "Whether an agreement to settle a workmen's compensation case is valid, where the amount is not specifically shown to be within the schedule of the act, without the express approval of a circuit court?"
It is obvious that the Kings intended for the $660,000 settlement to include all non-medical workmen's compensation benefits. In their settlement offer the following appears: "Of course, there would be no further Workmen's Compensation due."
Is this legal? Yes. All interested parties have a right to settle all matters of compensation between themselves. Section 25-15-150, Code of Alabama 1975. If the settlement is equal to or exceeds the benefits due under the Alabama Workmen's Compensation Act, then the settlement does not require court approval. Section 25-5-56, Code. No settlement for an amount less than the amounts or benefits stipulated is valid unless a judge of the appropriate circuit court approves the settlement. Section 25-5-56, Code. Phillips v. Opp & Micolas Cotton Mills, Inc., 445 So. 2d 927 (Ala.Civ.App.1984).
Here, a circuit judge of the county in which King was injured approved the settlement. He had before him the Kings' settlement offer stating that "there would be no further Workmen's Compensation due" other than the payments to be made in accordance with the settlement. The trial court found that "the parties entered into a binding contract in which there was a definite offer, acceptance and consideration; and the parties had the capacity and authority to agree as they did which was set out in writing." (Emphasis added.)
Although the trial court's order does not specifically state that the workmen's compensation claim was within the schedule of benefits prescribed by the act, such a finding is implicit in the trial court's judgment. Hawk v. Biggio, 372 So. 2d 303 (Ala.1979).
It appears to us that King received an amount far in excess of any amount of benefits a workmen's compensation claimant is entitled to receive for the injury claimed, §§ 25-5-68(b) and § 25-5-57, Code: Be that as it may, the trial court found that "the parties had the capacity and authority to agree as they did." After considering all of the evidence and after making all of the inferences that can logically be made from the evidence, we cannot hold that the judgment was plainly and palpably wrong.
We have a history of upholding litigants' settlement agreements in the absence of fraud or overreaching. See Brocato, supra; Hawk v. Biggio, supra; Sayre v. Dickerson, 278 Ala. 477, 179 So. 2d 57 (1965).
AFFIRMED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur.
[1] "J.W. will settle his case for $150,000 up front; $12,000 a year payable one year after the date of receiving the $150,000 and then $12,000 each year thereafter until he has received $12,000 for five years; then $14,000 a year for five years; then $16,000 a year for five years; then $18,000 a year for five years; then $20,000 a year for five years; then $22,000 a year for five years.
"I have stressed to him that we must make every effort to settle this case at this time and this is his lowest and last offer.
"Again, as I have told you earlier, any settlement of this nature will have to be conditioned upon you and I satisfying me that the Internal Revenue Service will allow me to accept my fees as he is accepting his money and I believe they will if there is any unknown factor involved in it and the only unknown factor I can think of would be that we could add to the settlement mentioned above another provision, that at the end of the above mentioned thirty year period, which would be guaranteed, there would then be paid to him the sum of $500 per year for the rest of his life. That would make it incapable of absolute certainty and I believe would probably mean that the IRS would allow my fees to be treated that way. Please try to respond to this offer tomorrow.
[2] "Your offer on behalf of Mr. and Mrs. J.W. King is accepted. We will pay the One Hundred Fifty Thousand Dollars ($150,000) cash up front as soon as we can get it here and get all the documents prepared. This is with the further understanding that Twelve Thousand Dollars ($12,000) per year will be paid beginning October 1, 1987 and for each year thereafter until five years total have expired; then Fourteen Thousand Dollars ($14,000) per year for the next five years; then Sixteen Thousand Dollars ($16,000) per year for the next five years; then Eighteen Thousand Dollars ($18,000) per year for the next five years; then Twenty Thousand Dollars ($20,000) per year for the next five years; then Twenty Two Thousand Dollars ($22,000) per year for the next five years. At the end of that time, which amounts to thirty years. Five Hundred Dollars ($500) per year will be paid to Mr. and Mrs. King for the rest of Mr. King's lifetime. All of this is with the further understanding that the case will be dismissed with prejudice, and the workmen's compensation benefits and case will be closed out immediately with the further provision that the medical benefits will remain open to the extent they are required to be paid by workmen's compensation act of Alabama. The workmen's compensation subrogation provision is waived so that Mr. King will not have to reimburse the carrier, The Travelers.
"As I told you, I cannot speak for Reynolds Metals Company on the effect of the settlement as to any retirement or disability benefits Mr. King may have, but to the best of my knowledge, this settlement has no effect on whatever other rights he has to either retirement or disability benefits. As far as social security disability benefits are concerned, I cannot speak about that with any certainty, but as we discussed, possibly they will be affected. I simply do not know and make no representations about these matters. I will certainly not write anything into the release agreement to foreclose Mr. King from making proper application for any other benefits to which he may be entitled.
"My client has to purchase the structured settlement, and it is done by sending it out for quotes. This was done on Friday afternoon, September 12 after you and I discussed it in Russellville. Quotes only last for ten days, so I need the following information from you immediately:
"1. The names and the street addresses of each payee (i.e. of yourself and Mr. and Mrs. James W. and Sadie H. King).
"2. The social security number of each payee.
"3. A first, second and third beneficiary for each payee; their relationship to each payee respectively, and their current street addresses, ages and social security numbers.
"4. The address where the deferred payments are to be sent. If the check is to be sent to a bank, give me the name and address of the bank and the payee's bank account identification number for direct deposits. I intend to have it set up where two-thirds of the payment goes to Mr. and Mrs. King and one-third to you. If I am wrong, and it should all go to only one party, but made out jointly to all three of you, let me know that.
"5. Birth certificate for Mr. King. I do not believe the company needs it for anyone else since Mr. King's lifetime will control the final $500 per year payments, and the rest of the payments are guaranteed.
"My contact with The Travelers will be out of town the week of September 22, so please get this information to me within one or two days of receipt of this letter so that it will reach him." | August 21, 1987 |
6e3fd7fb-11ea-4552-b931-eedef306db09 | Aaberg v. Aaberg | 512 So. 2d 1375 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1375 (1987)
Angela Dawn AABERG, a minor, who sues By and Through her mother and next friend, Lois AABERG
v.
Gwenda Hall AABERG a/k/a Gwenda Hall, as Administratrix of the Estate of Luther Philip Aaberg, deceased.
86-193.
Supreme Court of Alabama.
August 14, 1987.
*1376 Thomas E. Parker, Jr., of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellant.
J.R. Brooks of Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
MADDOX, Justice.
This is an appeal from a judgment of the Circuit Court of Madison County recognizing Gwenda Hall as the common-law wife of Philip Aaberg, deceased.
On March 27, 1986, Gwenda Hall was named the administratrix of Philip Aaberg's estate by the Probate Court of Madison County. Lois Aaberg, acting as mother and next friend of Angela Dawn Aaberg, sought to remove administration of the estate to the Circuit Court of Madison County to determine whether Gwenda Hall was the common-law wife of Philip Aaberg. The administration of the estate was removed to the circuit court. Judge John Snodgrass conducted a non-jury trial, and found that Gwenda Hall was the common-law wife of Philip Aaberg. Lois Aaberg brings this appeal on behalf of Angela Dawn Aaberg.
The elements of a valid common-law marriage in Alabama are well settled. They are: (1) capacity; (2) present agreement or consent to be husband and wife; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations. Mattison v. Kirk, 497 So. 2d 120 (Ala.1986). The only element at issue in this case is the existence of present agreement or consent to be husband and wife.
Philip Aaberg was married to Lois Aaberg in 1965. They had one child, Angela, and subsequently separated in 1968. Philip Aaberg and Gwenda Hall lived together from 1975 until his death in 1986. Philip did not obtain a divorce from Lois until 1978.
There was substantial evidence presented by both sides. The evidence presented to show that a common-law marriage did not exist was mainly composed of documents, which showed that Philip Aaberg and Gwenda Hall represented themselves as single on every document they executed that required the giving of a marital status. The couple maintained separate checking and charge accounts, except for a joint business account. Neither Lois nor Angela Dawn Aaberg considered the couple married.
The evidence in support of the marriage consisted mainly of testimony by family and friends concerning the eleven years they lived together. Philip Aaberg's two brothers, as well as many friends of Philip's, testified that they treated Philip and Gwenda as husband and wife and viewed their relationship as such. Gwenda and Philip took trips together as a married couple; Gwenda worked in Philip's various businesses without pay; she washed his clothes and cut his hair. Paul testified that Philip expressed on at least one occasion that "in God's eyes [he and Gwenda] were husband and wife." Close friends of Philip's testified of his wish to "formalize" his marriage by a civil ceremony. During Philip's stay in the hospital, Gwenda was recognized as his wife on numerous occasions by the staff.
The trial judge in this case rendered a long and detailed order setting out the evidence upon which his judgment was based.
Where a case, such as this one, is presented ore tenus, a strong presumption is indulged in favor of the correctness of the judgment. The court's findings of fact will not be disturbed unless they are unsupported by credible evidence or are found to be plainly and palpably wrong. State ex rel. Graddick v. St. Paul Fire & Marine Ins. Co., 431 So. 2d 1237 (Ala.1983); Martin v. Slayton, 428 So. 2d 23 (Ala.1983); Shepherd Realty Co. v. Winn-Dixie Montgomery, Inc., 418 So. 2d 871 (Ala.1982); Morrow v. Wood, 411 So. 2d 120 (Ala.1982). We are of the opinion that the record contains ample evidence to support the judgment.
*1377 The appellants contend that Philip and Gwenda's cohabitation before his divorce from Lois made their relationship illicit in its commencement, and that it would have remained illicit until a change occurred. The trial court noted the illegality of the relationship in its order, yet found that a common law marriage existed. This Court has recognized that where one of the parties is married when the new relationship begins that a common law marriage will be recognized only when a change occurs in the old relationship. See, Rickard v. Trousdale, 508 So. 2d 260 (Ala.1987) (husband divorced from first spouse); Boswell v. Boswell, 497 So. 2d 479 (Ala.1986) (husband's first wife dies). The majority of the evidence to establish the common-law marriage concerned conduct of the couple after 1980.
The appellants also urge us to take notice of the fact that Gwenda Hall never took the name Aaberg. While the taking of a man's name by a woman is good evidence of a common-law marriage, it is not required. This Court, in a voter registration case, stated the common-law requirements concerning married names: "Even though the state is correct in stating that most married women customarily assume the surnames of their husbands, ... we hold they are not legally required to do so." State v. Taylor, 415 So. 2d 1043, 1048 (Ala.1982).
Because there was evidence to support the trial court's finding, and because that finding is not plainly and palpably wrong, the judgment of the trial court is due to be, and it hereby is, affirmed. Kwick Set Components, Inc. v. Davidson Industries, Inc., 411 So. 2d 134 (Ala.1982).
AFFIRMED.
ALMON, BEATTY, ADAMS and HOUSTON, JJ., concur. | August 14, 1987 |
78706763-51c4-4cef-bfa8-97c14d006d6f | Wang v. Bolivia Lumber Co. | 516 So. 2d 521 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 521 (1987)
Charing L. WANG
v.
BOLIVIA LUMBER COMPANY and Jack Irvin.
85-1002.
Supreme Court of Alabama.
September 11, 1987.
Rehearing Denied November 6, 1987.
*522 William H. Saliba, Mobile, for appellant.
Alton R. Brown and Michael S. McGlothren of Brown, Hudgens, Richardson, Mobile, for appellees.
STEAGALL, Justice.
This appeal arises out of an automobile accident. The plaintiff, Charing L. Wang, appeals from a judgment based on a jury verdict in favor of the defendants, Jack Irvin and Bolivia Lumber Company. We affirm.
Plaintiff filed a complaint against defendants in the Circuit Court of Mobile County. Plaintiff alleged personal injuries as a result of her automobile's being struck from behind by an eighteen-wheel truck. The truck was owned by Bolivia Lumber Company and was driven by Jack Irvin. The case proceeded to trial on March 26, 1986, with plaintiff alleging two theories: negligence and wantonness. At the end of the plaintiff's case, the defendants moved for a directed verdict on both counts. The trial court granted the directed verdict as to the wantonness count and denied it as to the negligence count. The jury returned a verdict for the defendants on March 27, 1986. The plaintiff then filed a motion for new trial, which was denied by the trial court. Plaintiff raises several issues on appeal.
Plaintiff's first argument is that, during the qualification of the jury, she should have been allowed to ask members of the jury venire what effects, if any, the recent "propaganda" supplied by insurance companies would have on their decision in this case. The trial court refused to allow the questioning, finding that the inquiry had no benefit and would have clouded the jury's reasoning upon deliberation of the case.
In Heath v. State, 480 So. 2d 26, 28 (Ala. Crim.App.1985), the Court of Criminal Appeals stated:
"`[W]hile wide latitude should be accorded the parties in their voir dire examination of prospective jurors touching their qualifications, interest or bias, the extent of the examination is largely discretionary with the trial court.' Welborn v. Snider, 431 So. 2d 1198, 1201 (Ala.1983). Although a liberal inquiry should be afforded counsel, the scope of voir dire examination is within the sound discretion of the trial judge."
We cannot say that the trial court abused its discretion on this issue.
The plaintiff next asserts that she should have been granted a directed verdict on the issue of liability based upon the following remark made by the defendants' counsel during his opening statement:
"MR. BROWN: The reason we're in court today is because she was trying to get something that we think she was not entitled to; more money that she was entitled to."
Based upon this remark, plaintiff made a motion for directed verdict on the issue of liability. The trial court denied the motion.
Pursuant to Rule 50, A.R.Civ.P., a motion for directed verdict tests the sufficiency of the evidence. See 9 Wright & Miller, Federal Practice & Procedure, § 2537, n. 31 (1971). In Horton v. Continental Volkswagen, Inc., 382 So. 2d 551, 552 (Ala. 1980), this Court stated that "it is a truism that opening statements are not evidence." The remark of counsel during his opening statement was not evidence; therefore, the trial court was correct in denying plaintiff's motion for directed verdict.
Plaintiff's next argument is that the trial court committed error by not allowing a therapist's report into evidence.
During plaintiff's direct examination of Dr. Lopez, plaintiff sought to introduce into evidence a therapist's report, which Dr. Lopez did not rely upon in making his *523 diagnosis. The following colloquy occurred at trial:
"BY MR. SALIBA:
"Q. Doctor, I show you what has been marked as Plaintiff's Exhibit Number 5
"Q. Was that [plaintiff's exhibit # 5] used in any way in forming your diagnosis or opinions, [making] any prognosis as to Ms. Wang's condition?
"A. No, I [didn't] use this as a basis for my treatment and diagnosis."
In Brackin v. State, 417 So. 2d 602, 606 (Ala.Cr.App.1982), the Court of Criminal Appeals, quoting C. Gamble, McElroy's Alabama Evidence, § 110.01(3) (3d ed. 1977), stated:
"`[E]xpert witnesses, even physicians, cannot testify to the opinions of others in giving their opinions.' Carroll v. State, 370 So. 2d 749, 758 (Ala.Cr.App.), cert. denied, 370 So. 2d 761 (Ala.1979).
"`The traditional rule in this country has been that an expert, in giving his opinion, cannot rely upon the opinion of others. The basis for this rule of exclusion has been that such testimony is based upon what others have said, and, consequently, constitutes hearsay. In light of this rule a physician-witness' testimony to his opinion with respect to the condition of his patient may not be supported by testimony by such witness that certain opinions or reports of radiologists, concerning the patient had been made to him by other physicians.'"
Based upon the above, we hold the trial court was correct in excluding the therapist's report.
The next issue is whether the trial court erred in refusing to allow plaintiff to read into evidence certain pages in Dr. Faget's deposition. This case proceeded to trial with plaintiff alleging that on April 1, 1985, she incurred injuries to the back and neck. The portions of Dr. Faget's deposition that the court refused to admit related to conditions not pertinent to the plaintiff's alleged back and neck injuries.
In Ryan v. Acuff, 435 So. 2d 1244, 1250 (Ala.1983), this Court stated that "[q]uestions of materiality, relevancy, and remoteness rest largely with the trial judge, and his rulings must not be disturbed unless his discretion has been grossly abused." (Citations omitted.)
The court did not abuse its discretion by excluding testimony that was not pertinent to plaintiff's alleged neck and back injuries.
The next issue is whether the trial court erred in directing a verdict for the defendants on the issue of wantonness at the close of the plaintiff's case.
In Pate v. Sunset Funeral Home, 465 So. 2d 347, 349 (Ala.1984), this Court stated:
A review of the record reveals that as the defendants' truck approached the intersection the traffic light turned yellow, and defendant Irvin applied the brakes but was *524 unable to stop the truck, and lost control of it as it began to slide sideways and into the rear of the plaintiff's automobile. Light skid marks were found leading up to the point of impact. The defendants' truck was not in the same lane of traffic as the plaintiff when the truck approached the intersection. The police officer who investigated the accident testified, in response to a question by plaintiff's counsel, that he did not think the truckdriver was driving in excess of the speed limit, due to the load he had on the truck. The plaintiff testified that it had rained earlier in the day, but that at the time of the accident the sun was shining.
The facts in the instant case are similar to the facts in Wilson v. Cuevas, 420 So. 2d 62 (Ala.1982), and Hughes v. Southern Haulers, Inc., 379 So. 2d 601 (Ala.Civ.App. 1979), where directed verdicts in favor of the defendants on wantonness counts were upheld.
Viewing the evidence in a light most favorable to the non-moving party, this Court finds no evidence that the defendants acted in a wanton manner. Therefore, we hold that the trial court was correct in granting defendants' motion for directed verdict on the issue of wantonness.
Plaintiff's next argument is that the trial court erred in recharging the jury by charging the jury only on the meaning of reasonable care and simple negligence. No exceptions or objections were made at trial; therefore, the issue was not preserved for our review.
The next issue is whether the trial court erred in denying plaintiff the opportunity to address in closing argument the failure of the defendants to call a particular witness.
During closing argument, defense counsel drew inferences and made conclusions based upon his own reasoning concerning alleged findings of Dr. Zarzour, who was not called as a witness by either party. The following colloquy occurred during closing arguments:
"MR. BROWN: Dr. Zarzour, the orthopedic examined her one time. She didn't like what he found, which was nothing, just like the others.
"MR. SALIBA: Judge, I'm going to object. There was not testimony to that effect at all.
"THE COURT: Ladies and gentlemen, y'all determine what the testimony is. I'll instruct you on that later.
"MR. BROWN: Now, if your honor please, we're going to object to his arguing that we failed to call Dr. Zarzour. He's readily available to him.
"THE COURT: Sustain. He's equally available to both sides. Sustain."
Plaintiff's counsel, Mr. Saliba, argues that the trial court erred in not allowing him to proceed with his statement concerning Dr. Zarzour.
Pertaining to closing statements made by counsel, this Court, in Fountain v. Phillips, 439 So. 2d 59, 64 (Ala.1983), quoted earlier cases with approval:
"`[W]e "will not too narrowly criticize arguments of counsel in the matter of inferences drawn for illustration or figures of speech adopted in pressing a point." Louisville & Nashville R. Co. v. Tucker, 262 Ala. 570, 578, 80 So. 2d 288, 295; Jones v. Colvard, 215 Ala. 216, 218, 109 So. 877. Nor should we encroach on the trial court's discretion in the matter of argument of counsel. "Much must be left in such matters to the enlightened judgment of the trial court, with presumptions in favor of the ruling." Smith v. Reed, 252 Ala. 107, 112, 39 So. 2d 653, 657; Birmingham Electric Co. v. Mann, 226 Ala. 379, 381, 147 So. 165, 166.'" We find no error in the trial court's ruling.
Plaintiff next argues that the trial court erred in denying her motion for a new trial.
In Smith v. Blankenship, 440 So. 2d 1063 (Ala.1983), this Court held:
"Ordinarily, the denial of a motion for new trial rests within the sound discretion *525 of the trial court. This court will not disturb the trial court's ruling unless the record plainly shows the trial court to be in error in its action on such a motion. Hill v. Cherry, 379 So. 2d 590, 592 (Ala. 1980). Furthermore, jury verdicts are presumed correct and that presumption is strengthened when the trial court denies a motion for new trial. Finance, Inv. & Rediscount Co. v. Wells, 409 So. 2d 1341, 1343 (Ala.1981)."
We find no error in the trial court's denial of the motion for new trial. We note that this standard of review is different from the standard of review applied to the granting of a motion for new trial on the sole ground that the verdict is against the great weight or preponderance of the evidence. See Jawad v. Granade, 497 So. 2d 471 (Ala.1986).
The final issue presented by plaintiff concerns negligent entrustment. This issue does not appear to have been raised or pleaded at trial. In Smiths Water Authority v. City of Phenix City, 436 So. 2d 827, 830 (Ala.1983), this Court stated: "It is well established that this Court will not consider a theory or issue where it was not pleaded or raised in the trial court." (Citations omitted.)
Having considered and addressed all of the plaintiff's arguments, we affirm the judgment of the trial court.
AFFIRMED.
TORBERT, C.J., and MADDOX, J., concur.
BEATTY and HOUSTON, JJ., concur in the result.
ALMON, J., not sitting.
HOUSTON, Justice (concurring in the result).
See my dissent in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala.1987).
BEATTY, J., concurs. | September 11, 1987 |
7a5edcaa-19a8-44dc-a03b-774082acfb04 | Davis v. Brown | 513 So. 2d 1001 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 1001 (1987)
Frederika Marie DAVIS
v.
Ted BROWN and Cooper & Co., Inc.
85-527.
Supreme Court of Alabama.
August 21, 1987.
*1002 J. Hodge Alves III and Helen Johnson Alford of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellant.
B.F. Stokes III, Mobile, for appellees.
ALMON, Justice.
This is an action for fraud, breach of fiduciary duty, negligence, and breach of contract. The two defendants who are appellees here raised the statute of limitations and an assertion that the alleged misrepresentations were mere statements of opinion or "puffing" and not statements of material fact. The trial court granted summary judgment for defendants Cooper and Company, Inc., and Ted Brown, and entered a Rule 54(b), A.R.Civ.P., order of finality. Plaintiff, Frederika Marie Davis, appeals.
In 1982 Davis contacted Jane Sturtevant, an agent of Cooper and Company, Inc., a realtor, to inquire about purchasing a home. After showing Davis several homes, Sturtevant suggested that Davis attend an "open house" being conducted by Ted Brown, also an agent of Cooper and Company. After negotiations with Cooper and Company through its agents Brown and Sturtevant, Davis signed a purchase agreement with John N. Richmond Builders, Inc., for a home to be built in Vista Ridge Subdivision in Mobile. The house was completed, the sale was closed, and Davis moved in. She discovered numerous defects in the construction of the house and filed suit against Richmond Builders, John N. Richmond, Cooper and Company, and Brown.
Davis alleged that during negotiations with Cooper and Company, numerous fraudulent statements were made by Brown and Sturtevant, such as:
*1003 1. That Sturtevant was Davis's agent in connection with the purchase of the house and lot and that she owed a duty to Davis and would be looking out for her (Davis's) interest in the transaction.
2. That Cooper and Company "endorsed" Richmond Builders, that Richmond Builders was a "quality builder," and that she could not go wrong with a Richmond-built home.
3. That the school board owned the property adjoining the lot that Davis purchased.
4. That Brown told Davis that she could change the plans of the house.
5. That Brown told Davis that he was Richmond's coordinator and took care of construction details.
Appellees claim that Davis should have known that any cause of action for fraud had accrued well before the closing date of April 1, 1983. Davis claims that she did not know that the statements were false until after this date. The importance of this date is clear. Code 1975, § 6-2-3, provides:
This action was instituted on April 2, 1984. If Davis discovered that the statements were false after the closing date, then the action was timely commenced, because the day of the act, event, or default from which the designated period of time begins to run shall not be included. A.R. Civ.P., Rule 6(a). Even if Davis made the discovery on April 1, 1983, the action was timely commenced, because April 1, 1984, fell on a Sunday. When the last day of the period falls on a Saturday, Sunday, or legal holiday, the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday. A.R.Civ.P., Rule 6(a).
Facts constituting fraud are considered to have been discovered when they ought to have been discovered through reasonable diligence. Geans v. McCaig, 512 So. 2d 1308 (Ala.1987); Boros v. Palmer, 472 So. 2d 1020 (Ala.1985); Papastefan v. B & L Construction Co., 385 So. 2d 966 (Ala. 1980). The question of when a party discovered or should have discovered the existence of a fraud is ordinarily one for the trier of fact. Sims v. Lewis, 374 So. 2d 298 (Ala.1979).
There was credible evidence before the court when it ruled on the summary judgment motion that would support a finding that Davis was not aware of the falsity of the alleged misrepresentation until after the closing. A jury could find from this evidence that the defects Davis discovered before the closing, such as the use of a half-glass door in the master bedroom instead of an all wood door, and a kitchen drawer that would not open because the stove was placed too close to the cabinet, were not so substantial as to put her on notice of the falsity of the statement that the house was a "quality built" home. The jury could also find that the defects she discovered after the closing, and arguably could not have discovered by reasonable diligence before it, such as a cracked slab, dips in the roof, and seams appearing in the walls, were substantial enough to justify a conclusion that the alleged endorsements of Richmond Builders were actionable misrepresentations.
Since the determination of when the fraud was or should have been discovered is a question for determination by the trier of fact, summary judgment should not have been granted on this ground.
Davis alleges that a fiduciary relationship existed between herself and the appellees and that this relationship was breached. A broker may be an agent for both parties in a sales transaction; however, he opens himself to possible liability when he does so without full disclosure to *1004 both parties. Cashion v. Ahmadi, 345 So. 2d 268 (Ala.1977). In Cashion, this Court further held that whether a realtor is an agent of the buyer as well as an agent of the seller is a question for the jury. If it is determined that the realtor is an agent of the buyer, then a fiduciary relationship exists between them.
The pertinent statute of limitations for breach of fiduciary duty was one year[2] also. In Jefferson County Truck Growers Ass'n v. Tanner, 341 So. 2d 485 (Ala.1977), this Court held that the plaintiff's action accrued at the time he knew of the alleged fraudulent activity. The time of the discovery of the fraud is a question for the trier of facts. Sims, supra. Therefore, summary judgment should not have been granted based on the statute of limitations on the breach of fiduciary duty claim.
Counts I, II, and III are claims against John Richmond and Richmond Builders and do not apply to this appeal. Counts VI and VII concern Davis's fraud claim. In Counts IV and V of her complaint, Davis attempts to state claims for negligence and breach of contract. After reviewing these counts, we find that they do not raise a genuine issue as to any material fact and that these defendants were entitled to judgment as a matter of law as to these counts. Rule 56, A.R.Civ.P. Therefore, the trial court did not err in granting summary judgment on Counts IV and V.
Davis alleges that Brown and Sturtevant made numerous fraudulent misstatements of fact to her, including statements that Sturtevant was her agent and would assist her; that Richmond homes were "quality built" homes; that the school board owned the property adjoining her property; that she could make changes in the plans of the house; and that Brown was Richmond's coordinator. There is evidence from which a jury could determine that Brown and Sturtevant made representations to Davis that Sturtevant was her agent in the transaction and would be looking out for her interests. There is also evidence that Sturtevant was not her agent but rather was the agent of the seller, Richmond Builders, and that any representations otherwise were false.
Evidence also exists from which a jury could determine that, when Brown and/or Sturtevant told Davis that Richmond homes were "quality built" homes, Brown had listed and sold only six or seven Richmond-built homes and Sturtevant had listed and sold only one. A jury could infer from this evidence that Cooper and Company had not had enough contact with Richmond to have knowledge of the truth or falsity of its statement and that to make such a statement would be to do so recklessly. In addition, there is also evidence that all of the work on the house was done by subcontractors and that Cooper and Company had nothing to do with the hiring of the subcontractors. A jury could determine from this evidence that Cooper and Company did not have adequate knowledge of the work done by the subcontractors to make statements concerning the quality of their work and that to make these statements would be to do so recklessly.
There is also evidence from which a jury could find that Brown told Davis that the school board owned the property adjoining the lot that she purchased. There is also evidence, including Brown's testimony, that at no time during the negotiations did the school board own the property and that Brown was aware of this fact.
In addition, a jury could determine from the evidence that Brown told Davis that she could make changes in the plans of the house after initially approving the plans. Evidence also exists from which a jury could find that the only changes that she was allowed to make were those that were cost beneficial to Richmond Builders.
Evidence also exists from which a jury could determine that Brown told Davis that he was Richmond's coordinator and took care of construction details. There is also evidence, including testimony by John Richmond, that this statement was not true.
*1005 Appellees argue that these statements were merely statements of opinion or "puffing" rather than fraudulent statements of material fact.
Fidelity & Casualty Co. of New York v. J.D. Pittman Tractor Co., 244 Ala. 354, 13 So. 2d 669 (1943). See also, McRae v. Pope & Quint Gallery of Homes, 492 So. 2d 995 (Ala.1986). Accordingly, the determination of whether these statements were statements of opinion or statements of fact is an issue for the jury, and summary judgment should not have been granted.
The judgment is affirmed as to the breach of contract and negligence claims and reversed as to the other claims.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, JONES, BEATTY and HOUSTON, JJ., concur.
[1] Now 2 years. 1984-85 Ala.Acts, No. 85-39, p. 40, 2d Special Session 1984-85. See also Code 1975, § 6-2-39(a)(5) (repealed by Act 85-39) and § 6-2-38(l) (amended by Act 85-39).
[2] Code 1975, § 6-2-39(a)(5) (repealed by 1984-85 Ala.Acts, No. 85-39, p. 40, 2d Special Session 1984-85). The limitation is now two years. Act 85-39. | August 21, 1987 |
c9b5e913-7d55-4090-bd5c-b34069002858 | Gaston v. Ames | 514 So. 2d 877 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 877 (1987)
Jodie M. GASTON, et al.
v.
John B. AMES.
85-1340.
Supreme Court of Alabama.
September 4, 1987.
John E. Pilcher of Pilcher & Pilcher, Selma, for appellants.
William T. Faile, Selma, for appellee.
*878 ADAMS, Justice.
This is an appeal from a judgment in favor of the defendant, John B. Ames, against the plaintiffs, Jodie M. Gaston, Gabriel W. Osborn, Royal C. Burns, and Georgia Burns (hereinafter all plaintiffs are sometimes referred to as "Gaston"). Gaston filed suit against Ames on September 6, 1983, asking for a declaratory judgment determining that Ames had improperly prevented the plaintiffs from enjoying access to subdivision lots owned by the plaintiffs located in Ocmulgee Estates. They allege that Ames prevented access to their property by maintenance of a fence and locked gate across the only point of access to the subdivision. Plaintiffs also sought actual and punitive damages and a permanent injunction enjoining and restraining Ames from restricting or limiting their access to their subdivision. On June 27, 1986, the court, without a jury, issued its ruling denying all relief requested by the plaintiffs, concluding that the subdivision was no longer "viable." On appeal, plaintiffs argue that the trial court's judgment was erroneous and against the great weight of the evidence. We agree and reverse.
On August 30, 1973, J. Bruce Pardue and his wife, as owners, and Central Bank and Trust Company, as mortgagee, filed a map or plat of Ocmulgee Estates Subdivision in the Probate Office of Dallas County. The Dallas County Health Department and the Alabama Department of Public Health approved the subdivision plat. On July 22, 1974, Pardue and Central Bank filed a map of plat two of Ocmulgee Estates in the Probate Office of Dallas County. Dallas County approved the subdivision plat on July 22, 1974. On September 9, 1974, Pardue and Central Bank made, executed, and recorded a "declaration of protective covenants," which expressly adopted the plat of Ocmulgee Estates Subdivision. The declaration was filed in the Dallas County Probate Office on September 11, 1974. The plats were made, executed, and recorded to set forth dedicated uses and purposes as stated in the subdivision plat and as stated in the declaration of protective covenants.
On September 10, 1974, all the plaintiffs acquired title to their subdivision lots from Pardue. Subsequently, Central Bank foreclosed on Pardue's mortgage and held a foreclosure sale. On June 10, 1977, Ames purchased the remaining subdivision property through a trust. At the time of his purchase, none of the lots had been developed. Pardue had been using the unsold land for agriculture purposes, with established fences and gate. Since the purchase of the property, Ames has operated a farming and cattle operation on the land and has changed the locks on the gate several times. He testified that after each lock change, he made keys available for all lot owners. He further testified that he has maintained only the existing fences and has not constructed any new fences. He has also operated a gravel business and at one point made the main road of the subdivision impassable. By trial, the road had been repaired to its original state.
This case was heard by the trial court sitting without a jury. Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's conclusions on issues of facts; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala. 1981). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists. Smith v. Style Advertising, Inc., 470 So. 2d 1194 (Ala.1985); League v. McDonald, 355 So. 2d 695 (Ala.1978).
Ames introduced undisputed evidence that the plaintiffs' lots were located within a subdivision established in accordance with Alabama law. The subdivision plats and protective covenants were filed in the Probate Office of Dallas County. The plaintiffs' deeds were executed and delivered with reference to the plats of the subdivision. Pardue complied with the statutory requirements for the establishment of the subdivision. He first prepared the plats, pursuant to § 35-2-50, Code of *879 Alabama (1975), and recorded the plats in the Probate Office, pursuant to § 35-2-51(a), Code of Alabama (1975). Having met those two requirements, he is deemed to have made a conveyance in fee simple of all areas granted or dedicated to the public. § 35-2-51(b), Code of Alabama (1975). "[S]ubstantial compliance with the statutory requirements constitutes a valid dedication to the public of all streets, alleys, and other public places." Johnson v. Morris, 362 So. 2d 209, 210 (Ala. 1978). Cottage Hill Land Corp. v. City of Mobile, 443 So. 2d 1201, 1203 (Ala.1983).
After there has been a proper dedication to the public, that dedication is irrevocable and it cannot be altered or withdrawn except by statutory vacation proceedings. Booth v. Montrose Cemetery Ass'n, 387 So. 2d 774 (Ala.1980); Smith v. City of Opelika, 165 Ala. 630, 51 So. 821 (1910). Once the act of dedication is complete and made irrevocable, it is not affected by the present use of the property or the failure to use the property for the dedicated purposes. Cottage Hill Land Corp. v. City of Mobile, supra. In the present case, Ames argues that although the lots were sold within the subdivision, it was never fully developed. He argues that because the fence and gate were present when he purchased the property and the land was used for agricultural purposes, he should have the right to continue that use. The trial court followed that logic when it ruled that the subdivision was not "viable"; therefore, the plaintiffs' claim must fail. Although it is true that agricultural use has been occurring at the subdivision and that the plaintiffs have not built homes on their lots, their rights, according to the law, must prevail. As pointed out in the record and the briefs, the plaintiffs cannot sell their property as lots within a subdivision because of the present encumbrance on their property. The law is clear that plaintiffs are entitled to legal access to their lots. Because Pardue substantially complied with a statutory dedication, the plaintiffs have a right of access. To rule otherwise would be to vacate the dedication of the property in the subdivision. "[T]he vacating of dedicated streets is not lightly to be viewed when it deprives others, and especially abutting land owners, of their use." McPhillips v. Brodbeck, 289 Ala. 148, 153, 266 So. 2d 592 (1972).
For the reasons set forth, the judgment of the trial court is reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | September 4, 1987 |
62db8197-7650-491e-b57d-96471c25f9f5 | Reynolds Metals Co. v. Mays | 516 So. 2d 517 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 517 (1987)
REYNOLDS METALS COMPANY, a Corporation
v.
Doyle A. MAYS.
84-1317.
Supreme Court of Alabama.
August 21, 1987.
Rehearing Denied October 23, 1987.
*518 Braxton W. Ashe and J. Michael Tanner of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, and John H. Morrow and Walter J. Sears III of Bradley, Arant, Rose & White, Birmingham, for appellant.
Robert W. Walker of Walker & Musgrove, Florence, for appellee.
ALMON, Justice.
This is a defamation case. The appellee, Doyle Mays, was employed by the appellant, Reynolds Metals Company, Inc., as a furnace operator in the cast house at its reclamation plant in Sheffield, Alabama. On May 14, 1984, during the 11:00 p.m. to 7:00 a.m. shift, a fire was intentionally set in the office of Phillip Tays, the general foreman of the cast house. Reynolds's investigation of the fire turned up three suspectsWillie Gillis, Dub Givens, and Mays. The three suspects were suspended pending further investigation and were subsequently notified by telegram through the Western Union system that they were to take a polygraph test. Gillis passed the test and was reinstated to his job. Givens and Mays failed and were notified by telegram through the Western Union system that they were discharged.
Mays filed suit in circuit court claiming that the telegrams were defamatory and that there had been a publication to the Western Union employees. Mays also claimed that Raymond Graham, an investigator with Reynolds's industrial security department, had made a defamatory statement to Gary Holcombe, another furnace operator at the Sheffield plant. Graham made the statement during an interview with Holcombe when Graham said that he thought that Gillis, Givens, and Mays were involved in the fire.
At the trial of this action, a jury returned a verdict against Reynolds, assessing damages of $150,000 compensatory and $500,000 punitive. The court then rendered judgment in accordance with the jury verdict. Reynolds appeals from this judgment.
Reynolds claims that the state court lacks subject matter jurisdiction of this action, and that the judgment in favor of Mays is void, because Mays's state tort claim for defamation is preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Reynolds raises this issue for the first time on appeal. Mays argues that federal preemption is an affirmative defense that must be affirmatively pleaded in order to avoid waiver. Mays cites as authority International Longshoremen's Ass'n, AFL-CIO v. Davis, 470 So. 2d 1215 (Ala.1985). However, that case was appealed to the United States Supreme Court, which held that a claim that state court proceedings are preempted by the provisions of the National Labor Relations Act, 29 U.S.C. § 151 et seq., is not a waivable affirmative defense but a challenge to the court's power to adjudicate the case so that such a claim must be addressed by the court whenever it is raised. International Longshoremen's Ass'n, AFL-CIO v. Davis, 476 U.S. 380, 106 S. Ct. 1904, 90 L. Ed. 2d 389 (1986).
Thus, the question is before us as to whether the LMRA preempts the present action. In Allis-Chalmers Corp. v. Lueck, *519 471 U.S. 202, 105 S. Ct. 1904, 85 L. Ed. 2d 206 (1985), the Court held that a tort claim "inextricably intertwined with consideration of the terms of the labor contract" is preempted under § 301. Id., 471 U.S. at 213. The question, then, is whether Mays's claim is sufficiently independent of the collective-bargaining agreement to withstand the preemptive force of Section 301. International Bhd. of Elec. Workers, AFL-CIO v. Hechler, ___ U.S. ___, 107 S. Ct. 2161, 95 L. Ed. 2d 791 (1987).
The alleged defamatory statement by Graham was made during the investigation of the arson, as to which Mays was a suspect. The first telegram was sent to Mays to notify him that he was suspended and the second to notify him that he was discharged. To hold a company liable for defamation in a situation such as this would "simply mean that the company could never undertake to investigate a possible disciplinary situation in routine and proper ways." Strachan v. Union Oil Co., 768 F.2d 703, 706 (5th Cir.1985). Gillis v. Reynolds Metals Co., No. CV 84-HM-5319-NW (N.D.Ala. January 27, 1986),[1] arose from the same incident as the present case. In holding that the suit was preempted by Section 301, the court cited the above passage from Strachan. The decision was affirmed without a published opinion, by the Eleventh Circuit Court of Appeals. Gillis v. Reynolds Metals Co., 802 F.2d 1398 (11th Cir.1986), reh'g denied, 808 F.2d 61 (11th Cir.1986).
The defamation action is preempted by § 301 of the LMRA and the judgment of the circuit court is void. Because a void judgment will not support an appeal, the appeal is due to be dismissed. Graddick v. McPhillips, 448 So. 2d 333 (Ala.1984); Underwood v. State, 439 So. 2d 125 (Ala.1983).
APPEAL DISMISSED.
MADDOX, JONES, BEATTY and HOUSTON, JJ., concur.
[1] The unpublished opinion of the district court was provided to this Court by Reynolds. | August 21, 1987 |
9fb8dfa9-9c6e-4f2e-87ac-af06ab6b6f65 | Osborne v. Cromeans | 514 So. 2d 32 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 32 (1987)
Evelyn McClure Caproon OSBORNE
v.
Joe G. CROMEANS and Mary Ann Cromeans.
86-7.
Supreme Court of Alabama.
August 14, 1987.
William W. Tally, Scottsboro, for appellant.
Pam McGinty Parker and James S. McGinty of Dawson & McGinty, Scottsboro, for appellee.
MADDOX, Justice.
Joe G. Cromeans and Mary Ann Cromeans commenced this action by filing a complaint against Evelyn McClure Caproon Osborne in the Circuit Court of Jackson County, seeking damages and an injunction to prevent Osborne from blocking a public road. A temporary restraining order was granted. This case was tried ore tenus in May 1985; the trial court found that the road was a public road and enjoined and restrained all parties from interfering with the public's use of the road. Osborne appealed.
The road in dispute is depicted in several of the exhibits in evidence; for reference, we will refer primarily to defendant's exhibit 9, which we attach as Appendix A.
So viewed, on the left side of the map, running northeasterly, is Scott Street. At the southwest corner is the intersection of Scott Street and County Park Road. (Note: Many of the deeds in evidence call that road by its older name, "City Park Road.") At the very bottom of the map, near the lower left corner, is the intersection of the road in controversy with County Park Road. Shown as being 20 feet in width, the road is represented by dotted lines as it traverses northeasterly, and it is almost parallel with Scott Street. As it goes in a northeasterly direction, the road passes on the left a vacant tract shown as parcel "36" on the map, and three dwellings, shown as "29.02," "29.01," and "29." It then reaches the property of Evelyn Osborne, the defendant, shown as parcel "30" and labeled "Osborne." Directly to the north is the property owned by Dr. Cromeans and labeled "Cromeans." The plaintiffs also own the greatest part of the property on the east side of the road, except for a tract shown at the bottom of the map, owned by Calvary Baptist Church.
Upon reaching the south line of the Osborne property, the road continues around *33 the eastern edge of the Osborne lot and into the Cromeans property, where it corners around the rental house owned by the plaintiff. At the corner, the road is at the crest of a ridge. From there, the road turns west and goes down the side of the Cromeans property along the ridge to the point where it intersects with Scott Street. The trial court held that the road from the rental house (near the corner in the road) down to County Park Road was a public road. No findings were made with respect to the remainder of the road, as it goes west from the same corner down the ridge to Scott Street.
Of primary importance are two houses owned by the parties to this appeal and designated on the reappraisal map (Appendix A) as triangles. The first house is the house owned by the plaintiff, which is in the corner of the disputed road at the top of the map, and on the parcel designated in handwriting as "Cromeans." The other house is on the parcel designated as "30" and labeled in handwriting as "Osborne." The house owned by Cromeans was built by Jim Broadway in 1953, and one of the witnesses, Albert Ricker, installed a gas heater when the house was built. At that time the house was serviced by only one driveway, which intersected with Scott Street (at the upper left side of the map) and went in a straight line up the ridge to the house. At the Scott Street intersection, Jim Broadway erected a "private road" sign. Until 1956, the only way to reach the Jim Broadway house was by that road; the portion of the road that extends from the house at the corner of the road down to County Park Road was not built until 1956. The Cromeanses own the property, and the road that runs through it and intersects with Scott Street. Unquestionably, the Cromeanses have access across their property to Scott Street, but there is a steep ridge at the point where the road intersects with Scott Street. In this action, the Cromeanses claim that they have the right to use the road that runs across Osborne's lot, and they claim that right because the road has gained a public character. Osborne argues that if the road that intersects with Scott Street is virtually impassable, then the Cromeanses could construct a road across their own property located to the north of the rental house, but the Cromeanses contend it would be too expensive for them to do so.
The Cromeanses argue that the road has acquired a "public" character because they have used it from the "early sixties" and specifically from 1963 until the time when the suit was filed to enjoin its obstruction by the defendant. There was evidence that after the Cromeanses bought their property in 1962, the road was used as a service road, and that the Cromeans family has used the road at least monthly, and that the Cromeanses have walked and ridden bicycles on the road across the Osborne property, without asking for Osborne's permission.
We have examined the record, and we find evidence from which the trial court could have found that the road in question had acquired a "public" character. The trial judge found that the road was built in 1956 on property owned at that time by I.E. Airheart and Gene D. Airheart. One witness testified that he considered the road a public road, and that he had used it numerous times to visit the Broadways, to mow the grass and spray the fruit trees in the area for Jim Broadway while he owned it, and for Joe Cromeans since that time. He testified that he did not get permission from anyone to use the road.
The deed from I.E. Airheart, et al., to Joe G. Cromeans and his wife, Mary Ann Cromeans (plaintiffs), shows on its face that "This conveyance is made subject to an easement or right-of-way for an existing road sixteen feet in width which runs in a general northeasterly direction along the west boundary of the above-described tract of land and the grantees, their heirs or assigns, shall have the full and free right to the use of said road."
The spot survey of Osborne's property made by J.T. Lusk dated December 31, 1957, certifies "that there are no rights of way, easements or joint driveways over or across said land visible on the surface."
*34 The undisputed evidence shows that the City of Scottsboro regularly maintained the road for many years by use of a roadscraper and right-of-way mower. The undisputed testimony also was that the men, machinery, and materials of the City of Scottsboro were used to prepare the road for paving, and that the paving was paid for by the Cromeanses and other abutting owners, except Osborne, as is often the practice in Scottsboro in order to get gravel roads paved. A standard City of Scottsboro street sign is installed at the intersection of the road in question with the County Park Road, with the name shown thereon as "E RIDGE RD."
The evidence was uncontradicted that the U.S. Postal Service has run its mail route over this road for many years.
Likewise, the testimony is without dispute that the City of Scottsboro garbage pickup service has regularly operated along this road.
There was no dispute in the testimony that meter readers and other utility service personnel regularly used this road from the time it was built continuously down to the date of trial.
A gas supplier testified, without dispute, that he and his butane gas trucks could not get to the Jim Broadway house up the steep private drive from Scott Street, and, therefore, that he regularly used the subject road from the time it was constructed until the present time. He got no permission from anyone to use the road, because, he said, he "assumed that it was a public road."
In addition to this proof, the evidence is without dispute that sightseers, visitors to Broadway's house, the Cromeanses tenants, delivery people, joy riders, and the public generally used the road from the time it was built until the time of trial. Osborne's predecessor in title, Cleo Broadway, testified that the road from the Jim Broadway property southwest to the County Park Road had been used by anyone who wanted to use it continuously from the time it was constructed in the 1950's until the present time. He stated that his father had attempted to stop joy riders from making the loop from the County Park Road up East Ridge Road, formerly Broadway Drive, through his driveway and down his private drive to Scott Street by parking vehicles in the driveway on the Jim Broadway property, but that he never saw the driveway completely blocked, and, therefore, the joy riders continued to make the loop from the County Park Road to Scott Street, although they were slowed somewhat by the vehicles parked in the Jim Broadway driveway. His testimony was that the road in question extending from the Jim Broadway property line in a southwesterly direction to the County Park Road had never been blocked during all of the years that he had known it. The other witnesses who told about Jim Broadway's efforts to keep the joy riders from driving through his driveway each testified that the road in question had never been blocked anywhere between the south boundary of the Jim Broadway property (now the Cromeans property) and the County Park Road except for the brief period of time that Osborne blocked it with a load of dirt and installed a gate across the street in 1983.
The published map of the City of Scottsboro, prepared by Blevins Engineering Company, et al., in January 1960 purports to show all of the streets and highways in Scottsboro, Alabama, at the time of its publication, and it unmistakably shows the road that is the subject matter of this case as a public street named "Broadway Dr."
Subsequently, First National Bank published a map of the City of Scottsboro, Alabama, showing the streets and highways therein, and that map, which contained the 1965 Jackson County road map on the back side thereof, shows the subject road as "Broadway Drive."
Likewise, the TVA topographic maps introduced into evidence show the location of Broadway Drive.
It is also undisputed that the Jim Broadway driveway down the side of the ridge to Scott Street was steep, dangerous, and in disrepair, and could not be used by the gas truck.
The Cromeanses obtained this property by a deed from I.E. Airheart and Gene D. *35 Airheart. The deed states that "this conveyance is made subject to an easement or right-of-way for an existing road sixteen feet in width which runs in a general northeasterly direction along the west boundary of the above described tract of land and the grantees, their heirs or assigns, shall have the full and free right to the use of said road."
The issue on appeal is whether the trial court erred when it held that East Ridge Road was a public road. Osborne first contends that the Cromeanses failed to prove that they suffered special damages different in kind and degree from those suffered by the public in general and, therefore, that they were not entitled to bring this action to abate the obstruction.
This non-jury case was presented ore tenus. In an ore tenus case, the trial court's findings of fact are entitled to a presumption of correctness unless it is demonstrated that they are plainly and palpably wrong, manifestly unjust, or unsupported by the evidence. Johnson v. Jagermoore-Estes Properties, 456 So. 2d 1072 (Ala.1984); Seier v. Peek, 456 So. 2d 1079 (Ala.1984). We are of the opinion that the trial court's findings in this case are supported by the evidence.
This Court, in Ayers v. Stidham, 260 Ala. 390, 71 So. 2d 95 (1959), states the following regarding an individual's bringing an action to abate an obstruction:
260 Ala. at 392, 71 So. 2d at 98.
The Court, in Ayers, also stated:
260 Ala. at 393, 71 So. 2d at 98.
We are of the opinion that the Cromeanses showed a special injury sufficient to bring this action. Osborne contends that the Cromeanses have access to the rental house by another road. The trial court, however, found that "This road was unusually steep, in a terrible state of repair, and is impassable by ordinary traffic in its present state of repair, and would be highly unsafe in the best state of repair." The trial court also found that the road could not be used by the propane gas trucks when carrying a full load. We believe that the evidence supports the trial court's finding regarding the use of the other road. The testimony at trial was that the disputed road was necessary for the propane gas trucks to deliver gas to the Cromeanses' rental home. The record also reveals that the other road was full of potholes, was on a steep hill, and that it was very dangerous.
Osborne next contends that the Cromeanses failed to prove that the disputed road had been used continuously for more than 20 years and that the use of the road was not permissive.
It is well settled law in this state that "an open, defined roadway in continuous use by the public, without let or hindrance for a period of 20 years becomes a public road by prescription." West v. West, 252 Ala. 296, 40 So. 2d 873 (1949). After a prescription has been shown, the burden is then on the landowner to show permissive use only in recognition of his title, and his right to reclaim possession. West v. West, supra.
After examining the record in this case, we are of the opinion that the trial court was authorized to find that the disputed road was an open, defined roadway, through reclaimed land, in continuous use by the public without let or hindrance for a *36 period of more than 20 years; therefore, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
ALMON, BEATTY, ADAMS and HOUSTON, JJ., concur.
*37 | August 14, 1987 |
5320d1f6-8f78-456e-8c8d-a13f221aca03 | White v. Mobile Press Register, Inc. | 514 So. 2d 902 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 902 (1987)
John C. WHITE
v.
MOBILE PRESS REGISTER, INC.
86-239.
Supreme Court of Alabama.
September 11, 1987.
*903 W.A. Kimbrough, Jr., of Turner, Onderdonk & Kimbrough, Mobile, for appellant.
Edward S. Sledge III and Henry A. Callaway III of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment entered in favor of the Mobile Press Register, Inc. (hereinafter "Press Register"). The trial court found appellant, John White, to be a limited-purpose public figure and held that he had failed to defeat the defendant's motion for summary judgment by establishing, by clear and convincing evidence, that the allegedly libelous material was published by the Press Register with actual malice. We affirm.
White is a former regional administrator of the Environmental Protection Agency (hereinafter "E.P.A."). Soon after his retirement from E.P.A., White became an officer in Environmental Pollution Control, Inc., Environmental Planning and Development Corporation, and Environmental Development Systems, Inc. All three companies were involved in the transportation of hazardous waste.
On January 15, 1984, the Press Register published an article on hazardous waste in Alabama. A portion of the article reported that a shipment of cyanide sludge had disappeared while being transported to the waste disposal site in Emelle, Alabama. The article also included a remark from White, who was a principal of the company responsible for the shipment. White was quoted as saying, "We never had a load rejected.... They disposed of everything we took there."
On January 18, 1984, the Press Register ran a headline declaring "Missing Cyanide Sludge Found"; in the accompanying article, it was stated that the shipment had been located. The article related that a "waste stream," not a shipment, had been rejected. A "waste stream," it explained, consists of waste samples and a waste profile sheet. This information is supplied by the generator of the waste so that the disposer can determine whether to accept a particular waste shipment. The second article stated that White had said that Chemical Waste Management (the company managing the waste disposal site at Emelle) had never rejected a shipment from one of his companies.
The second article clarified that the sludge, from which the rejected samples were taken, was treated by Teledyne Corporation, the generator, after the samples were rejected. When the cyanide content was sufficiently reduced, the sludge was sent to Emelle, where it was accepted for disposal.
The reporter for these articles was Debbie Breland. She obtained her information from Buddy Cox, Chief of Hazardous and Industrial Wastes for the Alabama Department of Environmental Management, the agency responsible for the management of such waste in Alabama. Breland asserts that, to the best of her knowledge, she reported the facts as they were related to her by Cox. Cox, in his deposition, testified that he could not remember the details of his conversations with Breland. He stated to White that prior to the publication of the first article, he felt Breland was somewhat confused about the facts, though he did not tell her so. After the first *904 article was released, Cox talked to Breland again, and the January 18 article followed.
White asserts that he told Breland to check her facts before she published the first story, and that she failed to do so. Breland does not deny this allegation, stating that she had felt comfortable with what Cox had related to her. White further contends that, since this was not a "hot story," Breland should have checked her facts more carefully, and that her actions amounted to malice or reckless disregard for the truth.
White's prior association with E.P.A., and his choice of a career as a high level executive in an industry that is the subject of much public interest and concern show a voluntary decision to place himself in a situation where there was a likelihood of public controversy. His action invited attention and comment. The court determines as a matter of law whether an individual is a public figure. Mobile Press Register, Inc. v. Faulkner, 372 So. 2d 1282 (Ala.1979). White's actions were sufficient to support a finding that White is a limited-purpose public figure. See Gertz v. Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).
Once it is determined that a plaintiff is a public figure, then any publication that allegedly had libeled the plaintiff must be shown to have been produced with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In ruling on a summary judgment in a libel action involving a public figure, the standard for the trial judge to apply is whether the plaintiff has shown, by clear and convincing evidence, that the defendant acted with actual malice. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). This Court has held, in view of Bose, "that for purposes of trial motions, post-trial motions, and appellate review in a libel case involving ... a public figure actual malice must be shown by clear and convincing evidence." Pemberton v. Birmingham News Co., 482 So. 2d 257, 260 (Ala.1985). The requirement of showing actual malice by clear and convincing evidence rests with the public-figure plaintiff after the defendant produces evidence in support of its motion for summary judgment. Cousins v. T.G. & Y. Stores Co., 514 So. 2d 904 (Ala.1987).
In this case, the Press Register supported its motion for summary judgment by the depositions of White, Cox and Breland. This evidence, at most, indicates that Breland was possibly negligent in reporting the story of a "lost" shipment.
White's evidence in opposition to the motion failed to produce clear and convincing evidence from which a factfinder could conclude that the Press Register acted with malice in reporting the incident. See Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964), St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968).
We are persuaded that White is a limited-purpose public figure within the sphere covered by the allegedly libelous publication. As such, he is required to produce clear and convincing evidence from which a jury could conclude that the Press Register acted with actual malice in publishing the allegedly libelous statement. This he has failed to do. Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | September 11, 1987 |
1e4dcc5a-dae2-44c5-bf92-c5450d9c1342 | Hall v. State Farm Mut. Auto. Ins. Co. | 514 So. 2d 853 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 853 (1987)
Karen HALL, Administratrix of the Estate of Stevie C. Swain, Deceased
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
86-414.
Supreme Court of Alabama.
August 7, 1987.
Rehearing Denied September 25, 1987.
Sam E. Loftin, Phenix City, for appellant.
J. Pelham Ferrell of Ferrell, McKoon & Britton, Phenix City, for appellee.
BEATTY, Justice.
This case poses the question of whether an insurance policy issued by State Farm Mutual Automobile Insurance Company ("State Farm") provided plaintiff's intestate, Stevie C. Swain, with uninsured motorist coverage. The trial court entered a summary judgment for State Farm, relying principally on this Court's decision in Ex parte O'Hare, 432 So. 2d 1300 (Ala.1983). Because we hold that Ex parte O'Hare does not apply to the facts sub judice, we reverse and remand.
The parties do not dispute the facts, which were stipulated in the trial court. This action arises out of an accident involving one vehicle, which occurred on February 29, 1984, when a 1979 Toyota, driven by Gordon Wayne Johnson, struck a bridge on U.S. Highway 80 in Russell County, Alabama. The Toyota was owned by Gordon's mother, Bennie Mae Johnson, and was insured by State Farm under Policy No. 417 1282-B20-01B.
Gordon Wayne Johnson did not reside in the home of his mother and, thus, did not meet the policy's definition of a "relative." *854 He was covered under the policy insuring the Toyota, nonetheless, because he was driving the vehicle with his mother's permission and within the scope of her consent when the accident occurred.
Riding in the Toyota as a passenger was the plaintiff's intestate, Stevie C. Swain. Swain was the son-in-law of Bennie Mae Johnson and a resident relative of her household; therefore, Swain met State Farm's definition of "insured" under the policy issued for the Toyota. At the same time, Swain fell squarely under a liability exclusion in that policy that is commonly called the "household exclusion," in that he was a member of Mrs. Johnson's family and resided in her household at the time of the accident. State Farm denied liability coverage to the administratrix of Swain's estate on the basis of that exclusion.
Bennie Mae Johnson owned a second vehicle, a 1980 Plymouth Horizon, which she also insured with State Farm but under a totally separate insurance policy (Policy No. 436 4747-EO1-01D). As a resident relative, the plaintiff's intestate met the definition of "insured" under the policy on the Horizon as well.
Once State Farm had denied liability coverage to the estate of Stevie C. Swain due to the "household exclusion," the administratrix of that estate filed a complaint that sought to make an uninsured motorist claim under either or both of the State Farm policies issued to Bennie Mae Johnson.
Both the defendant and the plaintiff moved for summary judgment on the issue of whether uninsured motorist coverage was available to the estate of plaintiff's intestate, Swain, under either of the two policies of insurance issued to Bennie Mae Johnson by State Farm, and both submitted briefs in support of their positions. The trial court held that the plaintiff's intestate was not covered by either policy and granted summary judgment in favor of State Farm; the administratrix of the estate appeals.
The issue regarding the availability of uninsured motorist coverage under the policy insuring the 1979 Toyota is not before us. The plaintiff concedes in her brief that our holding in Ex parte O'Hare, supra, controls as to that question.
Thus, the sole issue before us is whether a vehicle, which is insured for liability under one policy, but coverage thereunder has been denied, can be considered an uninsured motor vehicle under a policy of insurance issued on another vehicle. The plaintiff contends that the uninsured motorist coverage is afforded by the plain and unambiguous construction of State Farm's policy language. State Farm, on the other hand, insists that the issue is controlled by Ex parte O'Hare, supra, and Dale v. Home Ins. Co., 479 So. 2d 1290 (Ala.Civ. App.1985), which it argues, stand for the proposition that an insured vehicle does not become uninsured simply because liability coverage may not apply to a particular individual.
The proposition on which State Farm relies first appeared in Watts v. Preferred Risk Mutual Ins. Co., 423 So. 2d 171 (Ala. 1982), in which this Court held that a denial of liability coverage, due to the lack of cooperation by the named insured, did not entitle the passenger in a vehicle to make a claim for uninsured motorist coverage under the policy insuring that vehicle. In that case, we adopted the logic in the holding of a Florida Supreme Court decision, Reid v. State Farm Fire & Casualty Co., 352 So. 2d 1172 (Fla.1977), because "we [were] persuaded that the Florida court correctly construed the exclusion where the same vehicle [was] involved in the claim for liability coverage and the uninsured motorist coverage." 423 So. 2d at 175.
In Watts, we quoted from the Reid decision as follows:
"`We hold that the family car in this case is not an uninsured motor vehicle. It is insured and it does not become uninsured because liability coverage may not be available to a particular individual. Taylor v. Safeco Insurance Co., 298 So. 2d 202 (Fla. 1st DCA 1974); Centennial Insurance Co. v. Wallace, 330 So. 2d 815 (Fla. 3d DCA 1976).
"`We recognize, as a general rule, that an insurer may not limit the applicability *855 of uninsured motorist protection. Hodges v. National Union Indemnity Co., 249 So. 2d 679 (Fla.1971); Salas v. Liberty Mutual Fire Insurance Co., 272 So. 2d 1 (Fla.1972). We believe, however, that the present case is factually distinguishable from previous cases and is an exception to the general rule. Here the family car, which is defined in the policy as the insured motor vehicle, is the same vehicle which appellant, under the uninsured motorist provision of the policy, claims to be an uninsured motor vehicle.'" 423 So. 2d at 175. The proposition on which State Farm relies again appeared in Ex parte O'Hare, in which this Court upheld the exclusionary definition in the uninsured motorist coverage, which stated: "but the term uninsured motor vehicle shall not include (i) a vehicle defined herein as an insured motor vehicle." 432 So. 2d at 1303. We found that this exclusion was reasonable in light of our holding in Watts. We went on to say:
"Here, as in Reid v. State Farm Fire and Casualty Co., 352 So. 2d 1172 (Fla. 1977), the automobile, `which is defined in the policy as the insured motor vehicle, is the same vehicle which [petitioner], under the uninsured motorist provision of our policy claims to be an uninsured motor vehicle.' 352 So. 2d at 1174.
"In our view the Court of Civil Appeals was correct in writing:
"`The Supreme Court of Mississippi in the case of Aitken v. State Farm Mutual Automobile Insurance Co., 404 So. 2d 1040 (Miss.1981), in interpreting a similar policy under similar facts held that the motor vehicle cannot be both insured and uninsured in the same policy. Neither can a driver be insured as a permissive driver and at the same time be uninsured for purposes of uninsured motorist coverage....'"
(Emphasis added.) 432 So. 2d at 1303.
Actually, the holding in Reid, the logic of which we had previously adopted, was squarely on point to the issue in O'Hare. Both cases addressed the same exclusion in a State Farm policy and both involved the denial of liability coverage to a passenger because of the household exclusion. In both cases, the passengers had then attempted to make an uninsured motorist claim under the very policy that had initially excluded them from liability coverage. Under those circumstances, we quoted from Reid, 352 So. 2d at 1173, when we wrote that "an insured automobile does not become uninsured because liability coverage may not be available to a particular individual." 432 So. 2d at 1303.
The Court of Civil Appeals addressed the same situation in Dale v. Home Insurance Co., 479 So. 2d 1290 (Ala.Civ.App.1985). Dale concerned a fireman who was injured in an accident involving the fire truck in which he was riding. The insurance company denied liability coverage due to the "fellow employee" exclusion; the fireman then tried to assert a claim for uninsured motorist coverage under the policy on the fire truck. Citing Watts and O'Hare, the Court of Civil Appeals held:
(Emphasis added.) 479 So. 2d at 1291.
The courts in these cases have consistently held that, when the insurance carrier of the vehicle involved in an accident denies liability coverage to an individual because of an applicable liability exclusion or exclusionary definition, that denial does not trigger the availability of uninsured motorist coverage to that individual under the same policy.
Thus, State Farm has taken the proposition on which it relies out of context. Its reliance on O'Hare and Dale is misplaced because those cases do not address the present issue of whether an individual who has had liability coverage and uninsured motorist coverage denied to him under the policy covering the vehicle in which he was *856 riding can press a claim for uninsured motorist coverage under another and different policy of insurance. The question posed to us here is one of first impression in this state.
An examination of the policy language for the 1980 Plymouth Horizon automobile is necessary in order to determine whether uninsured motor vehicle coverage is involved in the present case. The insuring agreement provides:
"SECTION IIIUNINSURED MOTOR VEHICLECOVERAGE U.
Thus, this policy issued to Bennie Mae Johnson on the 1980 Horizon obligated State Farm to pay uninsured motorist coverage, in the instant case, if: (a) Swain was an insured; (b) the 1979 Toyota in which he was a passenger was an uninsured motor vehicle; and (c) if none of the exclusions or conditions, as defined in the policy, were applicable.
Under the uninsured motorist coverage section of the policy, "insured" was defined as follows:
"Who Is An Insured.
"That is:
"1. the first person named in the declarations;
"2. his or her spouse;
"3. their relatives; ...
". . . .
The plaintiff's intestate falls within the omnibus class one definition of insured under this policy. (The parties also stipulated to this fact.)
We must next determine if, by the terms of the policy, the plaintiff was injured by an uninsured motor vehicle. The policy language provides, in pertinent part:
"An Uninsured Motor Vehiclemeans:
". . . .
". . . .
"(2) the insuring company denies coverage or is or becomes insolvent...."
That the 1979 Toyota was insured for liability at the time of this accident is not contested; nor is it disputed that the carrier for the 1979 Toyota denied plaintiff's intestate liability coverage under the "household exclusion," which provides:
"SECTION ILIABILITYCOVERAGE A
"When Coverage A Does Not Apply.
"THERE IS NO COVERAGE:
". . . .
"2. FOR ANY BODILY INJURY TO:
". . . .
Therefore, by the terms and definitions of its policy, the 1979 Toyota would appear to be an "uninsured motor vehicle." This is especially true in light of the rules of construction of insurance policies:
Cotton States Mutual Ins. Co. v. Michalic, 443 So. 2d 927, 930 (Ala.1983), overruled on other grounds, Holt v. State Farm Mutual Auto. Ins. Co., 507 So. 2d 388 (Ala.1986).
Unless this coverage is limited or restricted by the policy exclusion or definitions, we must apply these rules of construction and afford the estate of plaintiff's intestate with the uninsured motorist coverage that it seeks. The policy language contains only two exclusionary definitions that are even remotely pertinent. They provide:
"An uninsured motor vehicle does not include a land motor vehicle:
"1. insured under the liability coverage of this policy; [or]
Definition number one is inapplicable to this case, because the only vehicle insured by this policy, and thus the only vehicle excluded by O'Hare, is the 1980 Horizon. Under "SECTION ILIABILITYCOVERAGE A," the State Farm policy for the 1980 Horizon reads:
"We will:
On page three of this policy, State Farm defines "WORDS WHICH ARE USED IN SEVERAL PARTS OF THE POLICY." Included under these definitions is the following: "Your Carmeans the car or the vehicle described on the declarations page." The sole vehicle listed on the declarations page for Policy No. 436 4747-EO1-01D is the 1980 Horizon.
The question concerning the applicability of exclusionary definition two to the instant facts, although not raised or briefed on this appeal by the parties, appears to be controlled by our holding in State Farm Mutual Ins. Co. v. Jackson, 462 So. 2d 346 (Ala.1984).
Thus, we find nothing in the policy language for the 1980 Horizon that would allow State Farm to deny uninsured motorist coverage to the estate of Stevie Swain. Our holding arises from a plain construction of the policy language, the rules of construction for insurance policies, and the existing case law.
Our holding also agrees with the result reached by the Florida courts in Curtin v. State Farm Mutual Auto. Ins. Co., 449 So. 2d 293 (Fla.Dist.Ct.App.1984), review dismissed, 496 So. 2d 815 (Fla.1986), and Lee v. State Farm Mutual Auto. Ins. Co., 339 So. 2d 670 (Fla.Dist.Ct.App.1976), cert. denied, 348 So. 2d 954 (Fla.1977). These cases stand for the proposition that uninsured motorist coverages, under policies insuring vehicles other than the one involved in the accident, are available to passengers once the liability coverage on the vehicle involved in the accident has been denied to them.
Our holding here does not modify the holdings in any of the cases cited in this opinion. We are merely distinguishing the facts here from the facts in those cases in much the same way as the Florida Supreme Court distinguished the Lee decision from its holding in Reid v. State Farm Fire & Casualty Co., 352 So. 2d at 1174, when it wrote:
"The situation here is also distinguishable from that in Lee v. State Farm Mutual Auto. Ins. Co., 339 So. 2d 670 *858 (Fla. 2d DCA 1976), decided while this appeal was pending. In Lee a teenager was injured in a one car accident while a passenger in an automobile owned and operated by his brother. The teenager was permitted to recover under the uninsured motorist provision of his father's policy after his brother's liability carrier denied coverage under the household exclusion. In Lee this court was dealing with two separate policies. There, the teenager's father had purchased the uninsured motorist protection for himself and his family, and we held the son must be afforded that protection. Here, we are dealing with Fonck's claim under the uninsured motorist provision of the same policy under which the liability coverage was validly excludeda policy which made Fonck an insured solely because of his status of occupying the vehicle as an employee and not because of any coverage he purchased. ..." (Emphasis added.)
For the aforementioned reasons, the summary judgment in favor of State Farm is reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, ALMON, ADAMS and HOUSTON, JJ., concur. | August 7, 1987 |
17eefc72-4fc3-46de-94f6-945e171e9485 | Baldwin v. Baldwin | 516 So. 2d 560 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 560 (1987)
Bennie K. BALDWIN, Jr.
v.
Leon C. BALDWIN and Fairhope Single Tax Corporation.
86-69.
Supreme Court of Alabama.
September 18, 1987.
Rehearing Denied November 6, 1987.
*561 E.J. Saad of Crosby, Saad & Lasseter, Mobile, for appellant.
Richard C. Lacey and Mollie P. Johnston, Fairhope, for appellee Leon C. Baldwin.
Norborne C. Stone, Jr., and Dennis M. Wright of Stone, Granade, Crosby & Blackburn, Bay Minette, for appellee Fairhope Single Tax Corp.
HOUSTON, Justice.
The plaintiff, Bennie K. Baldwin, Jr., appeals the trial court's dismissal of his action seeking the partition of a 99-year leasehold in 10 acres of land. The plaintiff and defendant Leon C. Baldwin are co-tenants under the lease. The land is owned by defendant Fairhope Single Tax Corporation. We reverse and remand.
The dispositive issue in this case is whether the plaintiff is entitled to a partition under § 35-6-20, Code 1975. That section, in pertinent part, reads as follows:
The defendants contend that this section does not vest jurisdiction in the circuit court to partition a leasehold. They argue that only a joint owner of the fee or a tenant in common as to the fee is entitled to partition. We disagree.
Because of the disjunctive wording of the statute, our decision in this case does not require that we classify the leasehold as either real or personal property. However, it is interesting to note that an interest in realty arising out of a lease is generally stated to be hermaphroditic in nature, being partly real and partly personal. At common law, estates for years were classified as chattels real and regarded as personal property. In modern American law, a leasehold is for some purposes treated as realty and for others treated as personalty. See Thompson on Real Property § 1016 (1980); Comment, Personal PropertyEstates for YearsNature of Interest of Lessee for Years, 25 N.C.L.Rev. 516 (1947); Moynihan, Introduction to the Law of Real Property (1962); 49 Am.Jur.2d Landlord and Tenant §§ 7, 8 (1970).
Section 35-6-20, supra, clearly confers jurisdiction on the circuit court to "divide or partition ... any property, real or personal, held by joint owners or tenants in common." Cotenancy is an indispensable element of compulsory partition or a sale for division; therefore, a remainderman cannot maintain an action for partition or for sale for division against the life tenant. See Richardson v. Richardson, 417 So. 2d 158 (Ala.1982). Although the terms "joint owners" and "tenants in common" are customarily used in describing the relationship between the holders of a fee, § 35-6-20 does not limit the jurisdiction of the circuit court to partition only a fee. The phrase "held by joint owners or tenants in common" refers to "any property." Clearly the statute contemplates partition not only of a fee, but also of a leasehold held by co-tenants. Therefore, we hold that § 35-6-20 confers jurisdiction on the circuit court to partition a leasehold.
The plaintiff and defendant Leon C. Baldwin are co-tenants under the lease in question, each having an equal right to the possession and use of the entire 10-acre tract. The plaintiff alleged the following in his complaint:
"6. The Plaintiff has requested and, after the refusal of this request, has demanded that the Defendant allow the Plaintiff the use of a specified portion of *562 the land which is now being exclusively used by the Defendant.
A motion to dismiss is properly granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle him or her to relief. Garrett v. Gilley, 488 So. 2d 1360 (Ala.1986). As can be seen from the complaint, the plaintiff has set out facts that, if proven, would entitle him to a partition.
It should be noted that a co-tenant's right under the statute to have a leasehold partitioned should not infringe upon the lessor's rights under the lease. If a leasehold can be equitably partitioned among the co-tenants, the rights of the lessor under the lease will certainly not be diminished. If a leasehold cannot be equitably partitioned among the co-tenants, the co-tenants may negotiate among themselves for a transfer of their respective interests. Section 35-6-100, Code 1975. Should an interest in the leasehold be transferred from one co-tenant to another, or should it become necessary to transfer the leasehold to one not a party to the lease, the lessor still retains whatever rights he has under the lease as to assignability.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, BEATTY, ADAMS and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
ALMON and SHORES, JJ., not sitting.
MADDOX, Justice (concurring specially).
It may be unnecessary for me to file this special concurrence, but I do so only to emphasize that I concur completely in the law stated in the opinion, but, because this lease involves the Fairhope Single Tax Corporation, I call special attention to the statement that "the lessor still retains whatever rights [it] has under the lease as to assignability." This Court has just decided a case involving the Fairhope Single Tax Corporation, and the rights of parties when that corporation is involved are different from the rights of parties dealing with other corporations. See Fairhope Single Tax Corp. v. Rezner, [Ms. 85-482, 85-613, September 11, 1987] (Ala.1987). | September 18, 1987 |
ad485267-635b-49cd-b867-c4ac0e441705 | East End Memorial Ass'n v. Egerman | 514 So. 2d 38 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 38 (1987)
EAST END MEMORIAL ASSOCIATION d/b/a Medical Center East
v.
Karl E. EGERMAN and Ilene Z. Egerman.
TRUSSVILLE MEDICAL CLINIC, P.A.
v.
EAST END MEMORIAL ASSOCIATION d/b/a Medical Center East.
85-815, 85-875.
Supreme Court of Alabama.
August 21, 1987.
Lyman H. Harris and R. Stan Morris of Harris, Evans & Downs, Birmingham, for appellant-cross-appellee.
Clifford M. Spencer, Jr., and F. Hilton-Green Tomlinson of Pritchard, McCall, Jones, Spencer & O'Kelley, Birmingham, for appellees-cross-appellants.
MADDOX, Justice.
One appeal (85-815) challenges a ruling in which the trial court refused to find that a medical doctor and his wife were the alter ego of a medical clinic corporation and also refused to impose a constructive trust on funds transferred to the medical clinic by the plaintiff/appellant hospital pursuant to an agreement between the doctor and the hospital. The second appeal (85-875) challenges the trial court's action in granting the hospital's motion for judgment notwithstanding the verdict, or in the alternative for a new trial, on the hospital's claim for damages based upon an alleged breach of contract by the medical clinic. We affirm as to both appeals.
Many of the facts are not disputed. We set forth the facts substantially as they are included in the hospital's brief.
East End Memorial Association, d/b/a Medical Center East ("East End"), the plaintiff-appellant herein, is a not-for-profit, membership association corporation, composed of more than 300 individuals, companies, and churches making up 3,000 to 3,500 membership votes. East End was set up in approximately 1946 by individual citizens and civic clubs who saw a need for a hospital on the eastern side of Birmingham. These individuals, civic clubs, and churches raised money to purchase the female dormitory at the old Howard College campus, and they converted it into a 66-bed hospital.
In 1978, one of the geographic areas served by East End was the city of Trussville, located in the eastern part of Jefferson County. Prior to 1978, a Dr. Thompson *39 was running a family practice in Trussville, and sometime in 1977 defendant-appellee Dr. Karl Egerman opened a pediatric practice in Trussville. Dr. Thompson and Dr. Egerman were the only physicians in the Trussville area at that time.
Dr. Thompson, as a member of the medical staff of East End, customarily sent his patients needing hospital services to East End. It was estimated that 55 to 65 percent of the people in Trussville who needed hospitalization used East End. Sometime in 1978, Dr. Thompson retired and sold his office and medical practice to Carraway Methodist Medical Center. East End, realizing that it no longer had a family practitioner in the Trussville area, assessed the community needs to determine if another family practitioner was needed by the community and could be supported by the Trussville community.
Based upon the information that the Birmingham Regional Health Systems Agency had gathered from the American Medical Association, the American Hospital Association, and other medical planning entities throughout the country, East End determined that the population of the Trussville area would support a minimum of at least two additional primary care physicians. With the statistical data in hand showing that the Trussville area population could support another family practice, East End made the decision to set up a family practice clinic in the Trussville area. Evidence presented shows that the forecast made by East End was valid. There are currently three family practice physicians serving the area in addition to Dr. Egerman. At the time of the proposal, there was only one.
East End's general approach, after determining that there was a need for a clinic in a given locality, was to first offer the opportunity to a staff physician. That staff physician could employ an additional physician or take on a partner. If no staff member accepted the offer, then East End would recruit an outside physician and assist that physician in establishing his own office. Dr. Karl Egerman, a member of the staff of East End, was offered the opportunity to employ a family practitioner in Trussville with assistance from East End or to become an employee of an East End-owned clinic if that was his preference, and East End would recruit the additional physician for him. Dr. Egerman accepted the offer to employ an additional physician in his own practice.
East End had a "gross guarantee program" that it had used before, successfully, to assist new doctors in operating their own clinics. Under this "gross guarantee program", East End, for the doctor's first year of practice, would guarantee that the physician would gross a specified amount of income to be generated through the doctor's private practice, teaching, and other resources, such as working in East End's emergency room. The physician could also borrow interest-free money from East End as "start up" money, as needed, to help establish his medical practice. The gross income guarantee amount is based on anticipated gross income to be generated from all sources during the first year of practice. Stated simply, the gross guarantee program is designed to help the physician get started, and to guarantee him a fixed amount of gross income for his first year, even if he grosses less than what was anticipated.[1]
Under the gross guarantee plan, East End does not get involved in the physician's internal operation. The doctor would select his own quarters and would make his own decisions about equipment purchases and about whom he would hire and what he would pay them. He would set his own salary or draw, if any. East End could review the physician's books at the end of the year and, if there was a dispute, could determine whether the guarantee amount had been met. East End had no right to *40 look at the physician's books until after the end of the guarantee period. Loans were advanced when, and in amounts, requested by the physician. East End had entered into this gross guarantee arrangement with six physicians previously, and the arrangements proved acceptable to East End. This one obviously did not.
At about the same time that the gross guarantee program was being offered to Dr. Egerman, two Canadian physicians, who had practiced only one year, contacted East End by letter, expressing an interest in looking at opportunities in Birmingham. These doctors, Norman Abramson and Bryan McClelland, visited Birmingham from Canada and met with Karl and Ilene Egerman, along with executives of East End. After meeting with these doctors, Dr. Egerman asked East End if it would be interested in sponsoring the two new physicians at one time in a gross guarantee program along with himself. He indicated that he wanted both of them, although there were discussions about taking only one doctor at a time.
A September 4, 1978, memorandum from Robert C. Chapman, then executive vice-president of East End, to East End's board of directors recited in pertinent part:
East End agreed to sponsor all three doctors. The actual agreement is evidenced by the following letter to Egerman:
On the advice of Dr. Egerman's lawyer and his accountant, Dr. Egerman had formed the professional association called Trussville Medical Clinic, P.A. (hereinafter "TMC"), which was to employ Dr. Egerman and the other two physicians. It was established so that Dr. Egerman had total control.
Dr. Egerman searched for office space but could not find any that he considered satisfactory. A group of investors in Trussville offered to build Dr. Egerman a building that he could rent; however, this lease offer was well above the going rate. Additionally, Dr. Egerman was going to have to personally guarantee the lease for TMC. All of this being unsatisfactory to Dr. Egerman, he and his wife, Ilene, decided to personally buy land and build a facility for TMC to rent. The Egermans completed construction of the clinic and the gross guarantee program was begun in October 1978. Beginning with Dr. Egerman's first request for money assistance advances in October 1978, through the last request on February 4, 1980, Dr. Egerman received an undisputed $176,800.00 from East End.
In early 1979, within the guarantee program period, Dr. Egerman proposed the establishment of a satellite clinic in Odenville, Alabama. This satellite clinic was to be run by TMC and was to employ an additional physician. An additional gross guarantee of $80,000.00 was requested for Odenville by Dr. Egerman and it was approved by East End for this project; but Dr. Egerman never requested any funds for this clinic. Dr. Egerman and his wife bought some property in Odenville and purchased a specially built mobile home for an office. After only a few months of operation, Dr. Egerman sold the satellite clinic. He told East End that he had been talking with Brookwood Hospital about its buying the Odenville Clinic and he then offered to sell it to East End. East End agreed to purchase the Odenville Clinic from Dr. and Mrs. Egerman. The Egermans realized a $24,000.00 profit on the sale.
In February 1981, after the last money advance to TMC, East End began discussions with Dr. Egerman's representative concerning repayment of the $176,800.00 advanced to him. Dr. Egerman, through *42 an attorney, on March 16, 1981, advised East End that, basically, the guarantee had been made with TMC, not Dr. Karl Egerman as an individual, and that because of the financial situation of TMC, it was unable to repay any of the monies that had been advanced. The attorney stated that TMC was insolvent and was seriously considering filing a bankruptcy petition.
The attorney also claimed that East End had made misrepresentations to Dr. Egerman and that he had been caused to suffer financially because of his reliance on them. The attorney proposed to release East End of all possible liability in return for a cash payment in the sum of $20,000.00 to TMC. After further unsuccessful discussions, this lawsuit for recovery of the $176,800.00 was instituted against TMC and Dr. and Mrs. Egerman under various theories of contract, fraud, alter ego, and constructive trust. TMC answered, alleging that it did not owe the $176,800.00 because it had been misled or fraudulently induced by East End to establish and operate the Trussville clinic, and later filed a counterclaim based on fraud.
After full and lengthy discovery was had by all parties, this case was heard by a jury. When the trial proceedings of approximately one and one-half weeks were completed, the case was submitted to the jury by way of special interrogatories, with the jury acting in an advisory capacity as permitted by Rule 39(c), Ala.R.Civ.P., on the equitable issues. The special interrogatories asked if Dr. Egerman or TMC was liable to East End on a contract theory; if Dr. Egerman, Ilene Egerman, or TMC was liable to East End on a fraud theory; whether Dr. Egerman or Ilene Egerman was liable to East End on an "alter-ego" theory; and, on the counterclaim, whether East End was liable to Dr. Egerman and TMC under a fraud theory. The jury answered the questions by denying all claims of all parties.
East End filed a timely motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial, on all of its legal issues for the court to consider along with the equitable alter-ego and constructive trust issues. After taking these matters under advisement, the trial court, in an opinion and order dated March 10, 1986, granted East End's motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial and entered judgment against TMC on the contract theory in the amount of $176,800 plus interest of $66,555.00, denied East End's motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial on its fraud claims, and held against East End on the equitable claims that Karl and Ilene Egerman should be held personally liable because they were merely an alter ego of the clinic.
The doctrine is well established, and obtains both in law and equity, that "a corporation is a distinct entity, to be considered separate and apart from the individuals who compose it, and is not to be affected by the personal rights, obligations and transactions of its stockholders; and this, whether said rights accrued, or obligations were incurred, before or subsequent to incorporation." Loper v. Gill, 282 Ala. 614, 615, 213 So. 2d 674 (1968).
East End recognizes this well-established rule, but contends that "when the corporate form is being used to evade personal responsibility this Court has not been hesitant to disregard the corporate form and impose liability on the person controlling the corporation and subverting it to his personal use by the conduct of its business in a manner to make it merely his instrumentality," citing C.E. Development Co. v. Kitchens, 288 Ala. 660, 264 So. 2d 510 (1972), and Cohen v. Williams, 294 Ala. 417, 318 So. 2d 279 (1975).
East End also says that "[a] separate corporate existence will not be recognized when a corporation is so organized and controlled and its business so conducted as to make it a mere instrumentality of another or the alter ego of a person owning and controlling it," and calls our attention to Woods v. Commercial Contractors, Inc., 384 So. 2d 1076, 1979 (Ala.1980). It also argues that "[a] corporation and the individual *43 or individuals owning all of its stock and assets can be treated as identical, even in the absence of fraud, to prevent injustice or inequitable consequences," citing Barrett v. Odom, May & DeBuys, 453 So. 2d 729, 732 (Ala.1984).
East End recognizes the well-settled rule that when a trial court hears ore tenus evidence, as the trial court did here, every presumption will be indulged in favor of the trial court and its findings will not be disturbed on appeal unless palpably wrong or clearly erroneous; nevertheless, it contends that the rule is inapplicable in this case, because, it says, the essential facts are undisputed. It relies upon this Court's case of Samford v. First National Bank of Montgomery, N.A., 431 So. 2d 146, 149 (Ala.1983).
East End argues that the undisputed evidence before the trial court establishes that TMC was so organized and controlled and its business so conducted as to make it a mere instrumentality of the Egermans or the alter ego of the Egermans and that the Egermans used TMC for their own benefit and gain while avoiding personal liability. East End argues that the Egermans charged an unreasonable amount of rent for use of their building, that they treated other tenants better than TMC was treated, that they misused TMC for personal gain, that TMC paid all of the Egermans' bills at the Pine Tree Country Club, that Dr. Egerman was the only employee of TMC who was given a car, that Dr. Egerman was paid an arbitrary salary that was not related to TMC's income, that the Egermans failed to observe corporate formalities, and that TMC was severely undercapitalized.
The Egermans argue that they proved not only to the satisfaction of the advisory jury, but also to the trial court, that they did not use TMC as a subterfuge or to commit a wrong. They assert that TMC was not formed for the sole purpose of avoiding personal liability while they benefited through the use of the corporate name. The Egermans contend that in order to pierce a corporate veil, a party must either demonstrate fraud or show that the recognition of the corporate form will result in injustice or inequitable consequences, and the Egermans argue that East End failed to show either.
The trial judge, after reviewing the evidence, wrote an extensive opinion, in which he set out the contentions of the parties, the legal principles involved, and his own findings of fact. Portions of that order read as follows:
"In the present case, the jury's verdict then was merely advisory with respect to East End's claims against Karl and Ilene Egerman based on the `alter ego' theory or `piercing the corporate veil' theory. This Court must decide for itself under equitable principles whether East End is entitled to a judgment against the Egermans under this theory.
"As the principal ground in support of its argument that Karl and Ilene Egerman should be held liable for the debt of TMC, East End by its counsel states that TMC was established without adequate capital to carry out its operations. East End says that the fact that TMC was without adequate capital is sufficient basis in itself to ignore the corporate entity and hold the Egermans liable for the debt. East End cites a number of decisions and law articles to support its argument. Those include The Christian & Craft Grocery Co. v. Fruitdale Lumber Co., 121 Ala. 340 [25 So. 566] (1899); Dixie Coal Mining & Mfg. Co. v. Williams, 221 Ala. 331, 128 So. 799 (1930); Harris v. First Nat'l Bank of Tuscumbia, 227 Ala. 86, 149 So. 86 (1933); Appelbaum v. First Nat'l Bank of Birmingham, 235 Ala. 380, 179 So. 373 (1938); Ledlow v. Goodyear Tire & Rubber Co. of Alabama, 238 Ala. 35, 189 So. 78 (1939); Forest Hill Corp. v. Latter & Blum [, Inc.], 249 Ala. 23, 29 So. 2d 298 (1947); C.E. Dev. Co. v. Kitchens, 288 Ala. 660, 264 So. 2d 510 (1972).
"An analysis of these decisions, however, shows that there was other evidence of abuse of the corporate entity besides the inadequate capital of the corporation to sustain the court's decisions."
The court then analyzed and distinguished some of the cited cases, and included some others. The order continued:
*44 "In Kwick Set Components v. Davidson Industries [, Inc.], 411 So. 2d 134 (Ala. 1982), Davidson sought to hold a parent corporation liable for the debt of its subsidiary. Affirming a judgment for Davidson, the Supreme Court established the test in broad terms:
"`First, the dominant corporation must have controlled the subservient corporation, and second, the dominant corporation must have proximately caused plaintiff harm through misuse of this control.'
"In the present case, inadequate capital cannot be a basis for disregarding TMC's corporate existence. In Latta, Disregarding the Entities of Closely Held and Parent-Subsidiary Corporate Structures, 12 Cumb.L.Rev. 155, 165 (1981), the author discusses adequacy of capitalization as follows:
"`Furthermore, where adequacy of capitalization is an issue, courts tend to approach voluntary and involuntary creditors differently. Involuntary creditors, such as tort victims, cannot choose the perpetrator of their misfortune. Voluntary creditors, on the other hand, are generally able to inspect the financial structure of a corporation and discover potential risks of loss before any transaction takes place. Consequently, courts are less sympathetic with voluntary creditors who, having had the opportunity of inspection, nevertheless elected to transact with an undercapitalized corporation.'
"In Tigrett v. Pointer, 580 S.W.2d 375, 382 (Tex.Civ.App.1978), the Court of Civil Appeals of Texas stated:
"`Inadequate capitalization by itself may not be a sufficient ground to pierce the corporate veil. Associates Dev. Corp. v. Air Control Products, Inc., 392 S.W.2d 542, 545 (Tex.Civ.App.Austin, 1965, writ ref'd N.R.E.). Thus, a party who has contracted with a financially weak corporation and is disappointed in obtaining satisfaction of his claim cannot look to the dominant stockholder or parent corporation in the absence of additional compelling facts. Bell Oil & Gas Co. v. Allied Chem. Corp. 431 S.W.2d 336, 340 (Tex.1968); Hanson Southwest Corp. v. Dal-Mac Construction Co., 554 S.W.2d 712, 717 (Tex.Civ.App.Dallas 1977, writ ref'd N.R.E.)....
"* * * *
"In the present case, no evidence has been presented to show that East End asked for financial information on TMC or any personal guarantees from its stockholders or officers. When East End made advances against the guarantees, it could have ascertained by the exercise of reasonable diligence that TMC had limited capital. In fact, Chapman, East End's President, testified that the advances were made by East End under the gross guarantees to bridge the time lag between collections and billings.
"In its letter agreement with TMC, East End expressly reserved the right to inspect TMC's books to verify the gross billings. However, East End did not reserve the right to check on TMC's financial condition before making cash advances. It could have but did not require TMC to maintain a minimum net worth.
"East End could have easily discovered the extent of TMC's capital or financial resources. East End cannot now complaint [sic] about TMC's inadequate capital when it did not rely on TMC's capital resources initially in making the cash advances.
"East End also argues that the Egermans caused it harm by their misuse of TMC's corporate form; i.e., that the Egermans used TMC's assets and the money advanced TMC by East End for their personal benefit. As evidence of such misuse, East End contended during the trial that the Egermans rented their clinic building to TMC at an exorbitant rental; that Karl Egerman's salary from TMC in the amount of $60,000.00 was excessive; that TMC was caused to pay the Egermans' personal country club expenses of $5,978.00; that TMC was caused to pay $3,900.00 for Ilene Egerman's Honda automobile and that this price was in excess of its market value at the time of purchase; that Karl Egerman also rented equipment to TMC at an excessive rental.
"Before East End committed itself to the gross guarantee and to making advances *45 under the gross guarantee, it knew that the Egermans had purchased the land and were constructing the clinic building which they intended to lease to TMC. Since East End knew that TMC was wholly owned by Karl Egerman, it knew at that time that there was a basic conflict in a transaction between the Egermans and TMC. However, East End made no objections to the lease arrangement. Furthermore, a rental of $9.00 per square foot for a new building in October, 1978, was within the range of a reasonable rental, provided that the landlord paid for taxes, insurance, building maintenance and cleaning services. The imposition of these additional expenses are in excess of what could be considered a reasonable rental. However, the total of all these expenses should not have exceeded $15,000.00, and there is some question whether they would have been that high. In 1981, East End itself leased 2,000 square feet in Egerman's building at a rental of $9.00 per square foot, or $18,000.00 per year. The difference was that Egerman paid for all taxes, insurance, maintenance and cleaning services.
"According to the evidence, the equipment for the building was purchased by Egerman for $46,000.00. Egerman borrowed the amount needed for the purchase of the equipment and undertook an obligation to pay monthly payments to the bank in the amount of $901.46. TMC was caused to rent the equipment from Egerman and to make monthly payments of rent to Egerman in the amount of $901.46, or $12,620.00 per year. To the extent that such equipment would have value upon payment in full of the obligation assumed by Egerman to purchase the same, Egerman will have benefited rather than TMC. It has not been established that this amount would be significant in relation to the total amount of advances made by East End to TMC.
"There was also evidence that Egerman's salary was $60,000.00 and that TMC was caused to expend the sum of approximately $6,000.00 for country club dues and expenses. Entertainment expenses at country clubs have been allowed by the Internal Revenue Service as deductible expenses from income. To the extent that such expenses incurred by the Egermans represented entertainment of patients or doctors TMC was recruiting for employment by it, the country club expenses could properly be incurred and paid by TMC. It appears that at least a part of these expenses had no relation to TMC's business and were therefore personal expenses of the Egermans. To that extent, charging such expenses to TMC was improper and a misuse of TMC's assets.
"The Honda automobile was purchased by TMC from Ilene Egerman for $3,900.00. It is questionable whether the automobile had a value as high as that at the time when TMC was caused to purchase it. Nevertheless, the overpayment for the automobile is relatively insignificant in view of the total amounts involved here.
"This Court concludes also that Karl Egerman's salary of $60,000.00 was not unreasonable in view of his background and experience and the amounts earned by other employee physicians employed by TMC.
"There is also the copy of the statement rendered by TMC's accountant, John campbell, dated April 2, 1980, which included in the description of consultation services provided by Campbell the following:
"`... Research and analyze potential bankruptcy of P.A. to relieve P.A. of debt to East End Hospital.... Preparation of analysis to determine the potential liability to East End Hospital and calculation of alternative methods of debt forgiveness resulting from guarantees issued by East End Hospital....'
"Since the preceding bill was rendered by Campbell on March 4 [sic, April 2], 1980, the discussion or consultation referred to in his bill must have taken place between March 4 [February] and April 2, 1980. The cash advances made by East End for which it now makes claim had already been made at that time. Furthermore, nothing in the statement indicates a prior intention on the part of the Egermans to drain TMC of its assets and then cause it to file for bankruptcy proceedings.
*46 "Having considered the evidence, this Court is not reasonably satisfied that the corporate entity of TMC was used solely to avoid personal liability by the Egermans while preserving to them the benefits gained through the letter agreement with East End. See, e.g., Woods v. Commercial Contractors, Inc., 384 So. 2d 1076, 1079 (Ala.1980).
"In accordance with this opinion, the motion for judgment notwithstanding the verdict is hereby granted with respect to the claim of East End Memorial Association against Trussville Medical Clinic, P.A. Alternatively, pursuant to Rule 50(a), Alabama Rules of Civil Procedure, the motion for new trial filed by East End Memorial Association is conditionally granted with respect to the claim of East End Memorial Association against Trussville Medical Clinic, P.A., in the event the above judgment notwithstanding the verdict is hereafter vacated or reversed.
"The motion for judgment notwithstanding the verdict or, alternatively, for the new trial filed by East End Memorial Association is overruled with respect to the claims asserted by East End Memorial Association against Karl E. Egerman and Ilene Z. Egerman...."
We are of the opinion that the evidence was in dispute and that there was evidence to support the trial court's findings of fact, and that the trial court's conclusions of law are supported by adequate authority; therefore, we hold that the trial court did not err in refusing to pierce the corporate veil in this case, or in refusing to establish a constructive trust, and likewise did not err in granting East End's motion for judgment notwithstanding the verdict, or in the alternative for a new trial, in favor of East End against TMC on East End's contract claim, and in entering a judgment against TMC on that claim. The judgment of the trial court, therefore, is due to be affirmed.
Accordingly, the motion to dismiss the appeal is denied without addressing the merits of the contentions in support of that motion. See, Sumlin v. Hagan Storm Fence Co. of Mobile, 409 So. 2d 818 (Ala. 1982).
AFFIRMED.
ALMON, BEATTY, ADAMS and STEAGALL, JJ., concur.
[1] For example, considering a gross guarantee of $80,000.00, if a doctor had been advanced or loaned some $20,000.00 during the year and he had earned only $70,000.00 by the end of that year, subtracting the $10,000.00 that East End would owe the doctor because he did not meet the $80,000.00 guarantee from the $20,000.00 advancement or loan, the doctor would then owe East End only $10,000.00 at the end of the year. The doctor would be given the option to repay the $10,000.00 at that time or work out a repayment schedule. | August 21, 1987 |
69dfb409-c0a1-41a5-ad66-9f453fdbe5e0 | Gafford v. Kirby | 512 So. 2d 1356 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1356 (1987)
William F. GAFFORD, Individually and as Executor of the Estate of William F. Gafford, Jr., Deceased, and Juel Bass Gafford
v.
James KIRBY, as Trustee of the William Gafford Revocable Life Insurance Trust of January 12, 1981, et al.
85-1011.
Supreme Court of Alabama.
August 7, 1987.
Robert V. Woolridge III of Woolridge, Woolridge & Malone, Tuscaloosa, for appellants.
Ryan deGraffenried, Jr., of deGraffenried & Hawkins, Tuscaloosa and Arnold Lefkovits and Susan Salonimer of Berkowitz, Lefkovits, Isom & Kushner, Birmingham, for appellee.
BEATTY, Justice.
This is an appeal from a summary judgment entered on a petition seeking an interpretation of a trust instrument and instructions on the distribution of a trust estate. The petitioner, James Kirby, trustee of the William Gafford Revocable Life Insurance Trust ("Insurance Trust") named as respondents William Gafford, Juel Bass Gafford, Floyd O. Fitts, Jr., and Louise A. Fitts, in their various capacities.
The material facts in this case are not controverted; therefore, we adopt the facts as expressed in the trial court's order.
During the proceedings in the trial court, the respective parties moved for summary judgments. The trial court ultimately granted summary judgment, made final pursuant to Rule 54(b), A.R.Civ.P., and entered an extensive order that made the following determinations:
(1) The property held as joint tenants with the right of survivorship was allocable in equal shares to the estates of William and Susan pursuant to Code of 1975, § 43-7-4;
(2) William's personal effects became part of Susan's estate, since, by the terms of the instruments, she was presumed to have survived her husband in the event of their simultaneous deaths;
(3) Susan's estate, which consisted of her personal effects, William's personal effects, Trust Estate "A" and her one-half share of all property held in joint tenancy with right of survivorship, would descend by intestacy to her heirs at law, Floyd and Louise Fitts; and
(4) Trust Estate "B" would descend by the intestacy laws to William's heirs at law, William and Juel Bass Gafford.
The appellants, William F. Gafford, individually and in his capacity as executor of the estate of William F. Gafford, Jr., and Juel Bass Gafford (hereinafter "the Gaffords"), raise two issues on this appeal. First, the Gaffords argue that the court's instructions on the distribution of the trust estate were erroneous because the court failed to recognize that they, in their individual capacities, were the designated beneficiaries under Section V(9) of the trust agreement. Second, the Gaffords contend that the lower court erred by refusing to admit into evidence an affidavit of the attorney who drafted the instruments in question. The Gaffords object to the court's determination that the admission of this evidence would violate the parol evidence rule.
We affirm the judgment of the lower court.
The resolution of both questions on this appeal necessitates our construction of three interrelated documentsthe individual wills of William F. Gafford, Jr., and Susan Fitts Gafford and the trust agreement of the Insurance Trust, since all three instruments interact to form the scenario of the Gaffords' estate planning effort.
Other than his personal effects, which he devised to his wife, or to his children should his wife predecease him, the rest, remainder, and residue of his estate by the terms of William's will, "poured over" into the corpus of the Insurance Trust. The terms of this trust, which was to be created at his death "for the use and benefit of [his] wife and lineal descendants," were incorporated by reference into his will.
Two other items in this will must be noted. In Item IV, William stipulated that his wife should be presumed to have survived him in the event of their simultaneous deaths. Second, the will did not provide a contingent beneficiary should this trust fail for any reason. His will merely directed, in that event, that the trustee, nevertheless, should abide by the terms of the trust agreement in the administration of his estate.
The plan of distribution in Susan's will was similar to the format utilized in William's will. Her personal effects were devised to her husband or to her children should William predecease her. The remainder and residue of her estate was devised to her husband, provided he survived her by at least six months. Should her husband not satisfy this condition, the remainder of her estate would "pour over" and become a part of the corpus of the Insurance Trust, which presumably, at her husband's death, either would have been, or was in the process of being, administered by its trustee. Her will also incorporated this trust agreement by reference and in Section V reiterated the presumption of her surviving her husband in the event of their simultaneous deaths. The final similarity in these wills concerned the contingency of a failed trust. In that event, her will directed the trustee to implement the terms of the trust agreement, previously incorporated as a testamentary trust. The will provided for no other contingent beneficiaries in the event her husband and children should all predecease her.
At the execution of the trust agreement in 1981, William Gafford, Jr., surrendered various life insurance policies to the trustee of the Insurance Trust and designated this trustee as the beneficiary of the proceeds of these policies, as well as any other properties that the grantor might add to the trust in the future. Apparently, at the time of the execution of this trust instrument, the proceeds from these policies constituted the bulk of the trust res.
The terms of the trust agreement in § III(2) empowered the trustee, at the grantor's death, to apportion the trust res into two estates: Trust Estate "A" and Trust Estate "B." The trust's principal would first fund Estate "A," which was to consist of the greater of $250,000 or 50% of William's adjusted gross estate. So long as Susan survived her husband, Estate "A" would vest absolutely in her, free of the trust; however, a lapse of this estate would occur if she predeceased her husband or if she exercised her disclaimer option pursuant to § III(2)(b)(ii). In the event of either, the trustee was directed to merge the sum allocated for Trust Estate "A" into the principal of Trust Estate "B."
Trust Estate "B" consisted of the remainder of the trust property. Section III(2)(b)(ii) described Trust Estate "B" as having been "established for the benefit of grantor's said wife and lineal descendants as is hereinafter provided in Section V hereof." Section III(2)(c) directed the trustee to hold this estate for the "uses and purposes set forth in Section V of the trust agreement."
The crucial element of the trial court's ruling, and the crux of the present appeal, was that court's determination that, at Susan's death, the Insurance Trust failed for the lack of a beneficiary. Thus, her estate could not "pour over" into Trust Estate "B" at her death. Susan having provided for no other beneficiaries in her will, her estate descended to her heirs at law under the laws of intestate succession, Code of 1975, §§ 43-8-40, -42.
The trial court also held that the lack of a beneficiary at Susan's death also forced Trust Estate "B" to fail. That court held that Section V(9) of the trust instrument had no applicability because its reference to "any child ... entitled to share" related back to Section V(5) and meant any child or children who were still alive at Susan's death. In the instant case, due to Code of 1975, § 43-7-2, all the children were presumed to have predeceased both parents. Since the trust instrument provided for no other contingent beneficiary, the court distributed the res of Trust Estate "B" to the grantor's heirs-at-law, the Gaffords, by intestacy.
The Gaffords contest the trial court's ruling. They argue that they were the intended beneficiaries of Section V(9) because the phrase "child ... entitled to share" merely designated Catherine Louise Gafford, who was in being at the time of the execution of the trust agreement, and any other children subsequently born to or adopted by the grantor. They submit that *1359 this phrase served only to limit the class that it was intended to benefit and that it had no effect on the grantor's plans of distribution as evidenced by Section V(9) by which they were to have inherited his entire estate.
The positions of the parties thus ascertained, we can proceed with the pertinent clauses of Section V in the trust agreement.
Section V(1) provides:
Additionally, Sections V(1) and (3) granted her limited rights to invade the corpus of Trust Estate "B" either for her maintenance or as an advance to her children in designated situations, "but any sum so advanced to any such child or descendant of a deceased child shall be a charge against any part of said Trust Estate `B' to which such child or descendant of him or her may subsequently become entitled under the other provisions of this Trust Agreement." (Emphasis added.)
Section V(5) provides that, at the death of the income beneficiary (or at the grantor's death should Susan predecease him):
Section V(6) states:
Sections V(7), (8), and (9) all begin with the identical phraseology:
Section (10), the last section under heading V, allows a disclaimer by:
We approach the questions to be decided mindful of certain principles that are well settled in this state. In any case before this Court involving the construction of wills or trusts, the cardinal rule is to ascertain the testator's/grantor's intent. City National Bank of Birmingham v. Andrews, 355 So. 2d 341 (Ala.1978). We have repeatedly referred to this intent as the polestar that guides us. Wiley v. Murphree, 228 Ala. 64, 151 So. 869 (1933).
In order to arrive at that intention, we must look to the instrument(s) as a whole rather than construing any one paragraph separately. Perdue v. Perdue, 294 Ala. 194, 314 So. 2d 280 (1975). Furthermore, we recognize that we should reconcile all the provisions of the instrument, if at all possible, to form a harmonious whole that effectuates the testator's intent. Davis v. Davis, 289 Ala. 313, 267 So. 2d 158 (1972).
Having reviewed these documents in their entirety, we are convinced that provisos one through ten in Section V are interrelated and consistent with the testator's intent to provide his trustee with an orderly plan for the distribution of Trust Estate "B." This plan provides in Section V(1) for Trust Estate "B" to be held without division into shares for Susan's life, during which time she would be the income beneficiary. Sections V(1), (2), and (3) define her rights and limitations to invade the corpus of this trust during her lifetime; section V(4) imposes a corollary limitation on the trustee's right to invade the corpus during the lifetime of the income beneficiary.
By the terms of Section V, the first change in the makeup of the trust principal occurs after the death of the life income beneficiary. Section V(5) directs the trustee to apportion the principal, at that time, into as many equal shares as there are children then living. A share could also be created for a deceased child if that deceased child, at the time of apportionment, had any living lineal descendants, in which event the instrument referenced the trustee to Section V(7) in determining the method of distribution to these lineal descendants. Section V(6) sets out the terms by which the trustee could distribute these shares to the trust beneficiaries. Sections V(7), (8), and (9) provide the trustee with directions should any of three different contingencies, involving the death or deaths of the distributees, occur before these shares could be fully distributed. Section V(10) allows any of those entitled to share in the trust estate to disclaim their share and provides the trustee with directions by referencing him to V(8), should that contingency occur. Taken as a whole, we find that Section V provides a logical, consistent, and orderly plan that reflects the Grantor's stated intent to provide "for [his] wife and lineal descendants."
The question remains, however, whether any of the grantor's provisions in Section V provided for the contingency that in fact occurred. All the parties agree that the resolution of this question turns on the interpretation of the undefined phrase "child ... entitled to share."
The phrase "child ... entitled to share" appears in the trust instrument on five occasions in Section V in paragraphs (6), (7), (8), (9), and (10). In its first usage, at *1361 the beginning of paragraph (6), the grantor modifies this phrase with the adjective "such."
The appellants do not directly address this word in their brief; however, the appellees argue that this modifier refers the phrase to the previous paragraph and incorporates its longer designation of beneficiaries, to-wit: those children of the grantor (or the living lineal descendants of a predeceased child) who were living at either the death of the life income beneficiary or at the grantor's death should Susan have predeceased him.
We agree with the assessment of an earlier court when it wrote: "We cannot throw away the word `such.' It is descriptive and limiting, referring always to a class just before pointed out." United States v. Pittman, 151 F.2d 851, 852 (5th Cir.1945). Another source describes this word by stating:
83 C.J.S. Such (1953).
We note that the previous paragraph in Section V of this trust instrument does indeed refer to a classthose children to whom the trustee could apportion shares. Thus, the appellee's argument, in light of the grantor's use of the modifier "such," when taken alone, would appear to be a reasonable construction and consistent with the grantor's intent. Our decision, however, takes into consideration other factors which, when combined with the previous argument, persuade us that this construction is indeed the correct one.
The Gaffords argue that the phrase "child ... entitled to share" is merely a "shorthand term used as a synonym for the grantor's daughter, Catherine Louise Gafford, and any other children hereafter born to or adopted by grantor." The Gaffords' construction of this phrase coincides with the written definition in all three documents of the term "child" or "children." The Gaffords, in urging their construction of the phrase, fail to answer why the grantor would not have simply used the already defined term "child" rather than his consistent use of the new phrase "child ... entitled to share."
Able counsel drafted both wills and the trust agreement during the same time period to conform to the grantor's scheme of distribution of his estate. This gives rise to the legal presumption that the legal terms in the will are used in a legal sense; furthermore, this presumption is conclusive unless other language within the instrument indicates otherwise. Morris v. Gilbert, 285 Ala. 179, 230 So. 2d 237 (1970). In reviewing these documents, we find no such limiting language.
The Gaffords, in their construction of this phrase, urge this Court to reject the grantor's words "entitled to share" as extraneous or unnecessary.
95 C.J.S. Wills § 610 (1957).
We are not persuaded that these limiting words "entitled to share" should be summarily dismissed. Rather, we find that the construction that limits the distribution of Trust Estate "B" to only those children to whom the trustee could apportion a share is a reasonable and consistent construction and one that derives the grantor's intent *1362 from the plain usage of the entire phrase in question.
The reasonableness of this construction is further evidenced by the fact that paragraphs (6) through (10), in which this phrase appears, all deal with the distribution of the shares of Trust Estate "B" once these shares have been apportioned. Thus, they relate to the same subject or theme and not to unrelated contingencies, as the Gaffords contend.
Additionally, each of the paragraphs (6) through (10) begins with the same general phraseology, which includes the phrase "child ... entitled to share." As noted previously, the beginning phraseology in paragraphs (7) through (9) is identical. Therefore, our determination that the grantor intended a congruent meaning of this phrase for each time he used it, including its use in Section V(9), does not "graft a phrase from one item to another," as the Gaffords contend. Rather, our construction incorporates the well-settled rule in this state that words are considered to have been used throughout the will in the same sense. Ide v. Harris, 261 Ala. 484, 75 So. 2d 129 (1954).
Nor do we accept the Gaffords' contention that our construction renders the field of operation of paragraph V(9) meaningless because a child could never become "entitled to share in Trust Estate `B'" and die before apportionment. They argue that this construction makes the occurrence of these times simultaneous.
While it is true with this construction that a child would not become "entitled to share in Trust Estate `B'" until the death of the parents, nevertheless, the apportionment of each share could not occur until the trustee could ascertain the exact amount of the res in Estate "B." This amount would depend upon the administration of the estate of the last parent to die, due to the "pour over" aspects of his or her will. Second, should the grantor be the last to die, the apportionment would depend on the necessary collection of the proceeds of the various life insurance policies that principally funded this trust. Item VIII(2) of the trust instrument even empowers the trustee to take whatever action is necessary for this collection, including litigation. Therefore, the Gaffords' argument of the simultaneousness of these events fails, because there could be a significant lapse of time between the entitlement of the child to a share of this trust and its apportionment or distribution.
Nor does our construction of this phrase contravene the grantor's intent in Section V(3) as the Gaffords suggest. This paragraph allows the life income beneficiary to advance sums from the trust principal to any child for certain prescribed purposes. The Gaffords contend that this provision supports their argument that the rights of the child to this trust vested at birth. This argument might be persuasive but for the last part of this paragraph, which states:
(Emphasis added.)
The remainder of the Gaffords' arguments in support of their meaning of this phrase rely heavily on three rules of construction: (1) The rule that trust instruments should be upheld; (2) the rule that the construction of trusts should be guided by the intent of the grantor; and (3) the rule of construction against partial intestacy.
The validity of the trust is not at issue in this case. The issue is whether, by the terms of this instrument, the grantor anticipated and provided for the contingency that in fact occurred.
Likewise, the rules of construction against partial intestacy have no bearing in the instant case. While it is true that partial intestacy may result in the event that Gafford's trust did not provide for this contingency, nonetheless, these rules of construction against partial intestacy do not engraft upon us the license to rewrite the terms of this instrument just to avoid this result. Perdue v. Roberts, 294 Ala. 194, 314 So. 2d 280 (1975). Rather they *1363 serve as an aid in ascertaining the intent of the testator/grantor. Weil v. Converse, 273 Ala. 495, 142 So. 2d 245 (1962). Furthermore, "these, and all other rules of construction, are subordinate to the cardinal rule that the intention of the testator must be ascertained and given effect. They are useful only in aid, not in contravention, of that controlling purpose." Achelis v. Musgrove, 212 Ala. 47, 49, 101 So. 670, 672 (1924).
For the aforementioned reasons, we hold that the grantor intended for the phrase "child ... entitled to share," as found in paragraphs (6), (7), (8), (9), and (10) of Section V of this trust instrument, to relate back to paragraph (5) and describe only those children of the grantor who survived the last to die of William or Susan Gafford.
Having resolved the first issue in this appeal, we will briefly address the parol evidence question.
It is well settled in this state that extrinsic evidence is not admissible if the instrument, on its face, is clear and unambiguous, Morris v. Gilbert, 285 Ala. 179, 230 So. 2d 237 (1970), or if the ambiguity within the instrument is a patent one, Martin v. First National Bank of Mobile, 412 So. 2d 250 (Ala.1982). Extrinsic evidence is admissible only in the case of a latent ambiguity. Perdue v. Roberts, 294 Ala. 194, 314 So. 2d 280 (1975).
Jacoway v. Brittain, 360 So. 2d 306, 308 (Ala.1978).
The Gaffords attempted to introduce extrinsic evidence by way of an affidavit from the lawyer who drafted the wills and trust instrument which purportedly would explain the phrase "child ... entitled to share." They argued to the court below and here on appeal for the admission of this evidence because the phrase in question was a latent ambiguity. The trial court considered the proffered evidence but refused to admit it after the court determined that the ambiguity was patent.
The Gaffords, in arguing the error of this ruling, rely principally on the case Fraley v. Brown, 460 So. 2d 1267 (Ala. 1984). Fraley stands for the proposition that "parol evidence may be introduced to reveal a latent ambiguity in a writing which appears, on its face, to be clear and unambiguous." (Emphasis in original.) 460 So. 2d at 1269. Should this evidence convince the trial court that, when otherwise clear language in the instrument, by its application, might take on multiple meanings or refer to multiple parties, then the court can admit this parol evidence to clear up that ambiguity. Id.
The Gaffords' reliance on Fraley, however, is misplaced. The ambiguity in question arises out of the grantor's failure to define the phrase or to specify its meaning and has existed since the execution of the instrument. This ambiguity reflects an inadequacy inherent on the face of the document; it does not arise out of the attempted application of what otherwise is clear and unambiguous writing. Therefore, we agree with the trial court's determination that this ambiguity is patent and, thus, that extraneous evidence to explain it is inadmissible.
We also find that the evidence would have been inadmissible due to its content even if the court had determined that a latent ambiguity existed, because this affidavit does not address the meaning of the words employed by the grantor. Rather, it addresses what the grantor, or his lawyer, intended to say. The general rule on the admissibility of parol evidence is that:
Gibson v. Anderson, 265 Ala. 553, 555-56, 92 So. 2d 692, 694-95 (1956) (emphasis in original). See also Achelis v. Musgrove, 212 Ala. 47, 101 So. 670 (1924).
It follows, therefore, that the decree of the trial court is to be affirmed and that the distribution of the estates of William and Susan Gafford and Trust Estates "A" and "B" shall be pursuant to the order below. It is so ordered.
AFFIRMED.
MADDOX, ALMON, ADAMS and HOUSTON, JJ., concur. | August 7, 1987 |
ec019e99-2cc2-48fc-8528-6600c7b0796a | Pugh v. Butler Telephone Co., Inc. | 512 So. 2d 1317 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1317 (1987)
Barbara PUGH, et al.
v.
BUTLER TELEPHONE COMPANY, INC., et al.
85-1017.
Supreme Court of Alabama.
July 31, 1987.
Jay A. York of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellants.
Jerry A. McDowell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile for *1318 appellees Butler Telephone Co., Bay Springs Tel. Co., & Tel. Electronics Corp.
Fred W. Killion, Jr., and William W. Watts III of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee Joseph D. Fail Engineering Co., Inc.
HOUSTON, Justice.
This is an appeal by the plaintiffs, the surviving parents and the estate of Johnnie Carl Pugh, from a summary judgment in favor of the defendants, Butler Telephone Company, Inc., Bay Springs Telephone Company, Inc., Telephone Electronics Corporation, and Joseph D. Fail, Engineering Company, Inc., in a wrongful death action. Pugh, an employee of Sandidge Construction Company ("Sandidge"), was killed while working in the line and scope of his employment when the sides of an excavation in which he was working caved in on top of him. There was at least a scintilla of evidence that the excavation in which Pugh was working at the time of his death was neither shored nor sloped and that it violated certain general safety standards. The excavation had been dug the day of Pugh's death by Sandidge, without knowledge of Butler Telephone Company ("Butler") or Joseph D. Fail Engineering Company, Inc. ("Fail"). Sandidge was under contract with Butler to "lay approximately 18 miles of telephone cable" in a rural area. This was a system that had been approved by the U.S. Department of Agriculture, Rural Electrification Administration (REA). Butler's contract with Sandidge was an REA contract. Fail was the engineer whose responsibility it was to ensure the expeditious and economical construction of the project in accordance with approved plans and specifications. Fail was not to exercise any actual control over Sandidge's employees. The engineering contract between Butler and Fail further provided that Fail's obligations "run to and are for the benefit of only" Butler and the REA administrator.
The plaintiffs' issues for review relate only to the liability of Butler and Fail.
There are three issues presented for review.
The first issue is whether there is a scintilla of evidence to support a finding that Sandidge was an agent of Butler, which finding would enable the plaintiffs to sue Butler for the negligence of Sandidge under the theory enunciated in Alabama Power Co. v. Beam, 472 So. 2d 619 (Ala. 1985).
Plaintiffs correctly state that whether a relationship is that of an independent contractor or master-servant depends on whether the entity for whom the work is being performed has reserved the right of control over the means by which the work is done. Sawyer v. Chevron USA, Inc., 421 So. 2d 1263 (Ala.1982). In the absence of a non-delegable duty, the mere retention of the right to supervise or inspect the work of an independent contractor as the work progresses to ensure compliance with the terms of an agreement does not operate to create a master-servant relationship. There must be a retention of control over the manner in which the work is done, before an agency relationship is created. Alabama Power Co. v. Beam, supra, at 625; Brown v. Commercial Dispatch Publishing Co., 504 So. 2d 245 (Ala. 1987). In determining the relationship between Butler and Sandidge, we must review the written contract and the actions of the parties pursuant to the contract.
Our standard of review of a summary judgment granted in favor of a defendant requires us to review the record in a light most favorable to the plaintiff and to resolve all reasonable doubts against the defendant. Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986); Burt v. Commercial Union Insurance Co., 489 So. 2d 547 (Ala.1986); Autrey v. Blue Cross & Blue Shield of Alabama, 481 So. 2d 345 (Ala.1985).
The following are all of the provisions of the contract that in any way relate to Butler's retained right of any control:
(1) Butler reserved the right to require the removal from the project of any of Sandidge's employees if in Butler's judgment such removal was necessary to protect Butler's interest.
*1319 (2) Butler had the right to require Sandidge to increase the number of employees and to increase and change the amount or kind of tools or equipment if at any time the progress of the work was unsatisfactory to Butler, but Butler's failure to give such directions did not relieve Sandidge of its obligations to complete the work within the time and manner specified in the contract.
(3) Butler and the REA administrator reserved the right to inspect all payrolls, invoices of materials, and other data and records of Sandidge relating to the construction of the project.
(4) Sandidge was required at all times to take all reasonable precautions for the safety of its employees on the project and of the public and to comply with all applicable provisions of federal, state, and municipal safety laws and building construction codes, as well as safety rules and regulations of Butler. Interpreting the contract most favorably to the plaintiffs, one would conclude that if Sandidge violated this provision, after written notice was given Sandidge by Fail or Butler, Sandidge would immediately correct the violation and if it failed to do so then Butler "may correct such violation" at Sandidge's expense. If Butler deemed it necessary or advisable, it could correct a violation at Sandidge's expense without prior notice to Sandidge.
This contract is materially different from the contract in Alabama Power Co. v. Beam, supra.
We do not believe that the contract gave Butler any right of control over the manner in which the work was done by Sandidge. As previously noted, retention of the right to supervise or inspect the work as it progresses to ensure compliance with the terms of the construction contract and the retention of the right to stop work done improperly do not create a master-servant relationship between the entity for whom the work is being performed and the entity doing the work. Alabama Power Co. v. Beam, supra.
There is no evidence in the record that Butler exercised any control or retained any right of control over the manner in which Sandidge performed any of its work on the project. The undisputed evidence in the record shows that Sandidge's employees took their directions in the laying of the pipe or cable exclusively from Sandidge and that Sandidge alone was "running the show and controlling the workplace."
The remaining two issues for review are as follows:
Is there a scintilla of evidence to support plaintiffs' contention that Fail negligently failed to carry out its duties under the terms of the contract between Butler and Fail and thereby proximately caused Pugh's death?
Whether Butler may be held liable for the negligence of Fail if Fail violated its contractual responsibilities by failing to be present on the jobsite and if this failure resulted in Pugh's death?
These issues will be discussed together, since we do not find that Fail did not carry out its duties under its contract with Butler.
Fundamental to the maintenance of a negligence action is the existence of a legal duty of care owed by the defendant to the plaintiff. Plaintiffs place great emphasis upon the contractual undertaking of Fail in its contract with Butler. While a party's negligent performance of a contract may subject that party to liability in tort for physical harm to others, see Morgan v. South Central Bell Tel. Co., 466 So. 2d 107, 114 (Ala.1985), the scope of that duty, i.e., the persons to whom that duty runs, must be ascertained. Thus, for instance, a workmen's compensation carrier who makes safety inspections of its insured's premises owes a duty of care to the employees of that insured to perform the inspection non-negligently. Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So. 2d 844 (1971). That same carrier, however, making the same inspection of the same premises, owes no duty to the employees of an independent contractor who are on the insured's premises and who may be injured by a danger the carrier should have discovered. Armstrong v. Aetna Ins. Co., 448 So. 2d 353 (Ala.1983). In Armstrong, we *1320 held that the scope of the duty of care should be co-extensive with the class of persons who were the intended beneficiaries of the inspection, i.e., the class of persons covered by the workmen's compensation policy. Id. at 355.
A similar analysis must be made in the present case. Fail's inspections and other activities on site had nothing to do with the safety of Sandidge's employees. Fail's job was to insure compliance with the plans and specifications, for the benefit of Butler, the "owner."
Fail had no responsibility to "exercise any actual control over employees of the Contractor." Its job responsibilities did not include oversight of safety on the job. Fail was on site simply to ensure compliance by the contractor with the plans and specifications and the terms of the construction contract, for Butler's and the REA administrator's benefit.
In Weeks v. Alabama Electric Co-op, Inc., 419 So. 2d 1381 (Ala.1982), we analyzed an engineering services contract substantially identical to the Butler-Fail contract. We concluded that the kind of contractual language relied on by the plaintiffs in that case was insufficient as a matter of law to create a duty of care on the part of either the owner or the engineer.
In this case, efforts to prove the existence of a duty towards Pugh must fail, because plaintiffs are necessarily relying on nonfeasance, as opposed to misfeasance, in Fail's performance of the contract, i.e., plaintiffs contend that Pugh was killed because of the failure of Breland (Fail's resident engineer) to be at the bore site at the time of the accident.[1]
Morgan v. South Central Bell Tel. Co., 466 So. 2d at 114; see C & C Products, Inc. v. Premier Ind. Corp., 290 Ala. 179, 186, 275 So. 2d 124, 130 (1972), appeal after remand, sub nom. Premier Ind. Corp. v. Marlow, 292 Ala. 407, 295 So. 2d 396, cert. denied, 419 U.S. 1033, 95 S. Ct. 515, 42 L. Ed. 2d 308 (1974) ("a mere failure to perform a contractual obligation is not a tort, and it furnishes no foundation for an action on the case").
Under these circumstances, the issue of duty was a question of law, and it was correctly decided by the trial court. Alabama Power Co. v. Dunaway, 502 So. 2d 726 (Ala.1987).
The trial court did not err in granting summary judgment to Butler and Fail. The judgment should be affirmed.[2]
AFFIRMED.
MADDOX, ALMON, BEATTY and ADAMS, JJ., concur.
[1] We are assuming for the sake of this argument, without deciding, that the contract did require Fail to have a resident engineer present at all times at the site while such work was being performed.
[2] Since the action of the trial court can be affirmed on the basis of the lack of a duty, it is not necessary to address whether Sandidge's failure to follow the instructions given it by Fail was, as a matter of law, an unforeseeable, intervening event. See, Hall v. Booth, 423 So. 2d 184 (Ala.1982); Vines v. Plantation Motor Lodge, 336 So. 2d 1338 (Ala.1976). | July 31, 1987 |
a534a1da-525d-43c1-85fb-1fd00c520381 | Ziegler v. City of Millbrook | 514 So. 2d 1275 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1275 (1987)
Elizabeth F. ZIEGLER
v.
CITY OF MILLBROOK.
85-1461.
Supreme Court of Alabama.
August 28, 1987.
Rehearing Denied October 2, 1987.
Stephen M. Langham, Prattville, for appellant.
Philip S. Gidiere, Jr., of Carpenter & Gidiere, Montgomery, for appellee.
BEATTY, Justice.
The plaintiff, Elizabeth Ziegler, appeals from a summary judgment granted in favor of the defendant, City of Millbrook, in her action to recover damages for negligently or wantonly failing to provide fire protection. We reverse and remand.
The sole issue presented in this case is whether a municipality, under the doctrine of substantive immunity, is liable for negligence in failing to provide fire protection.[1]
In Williams v. City of Tuscumbia, 426 So. 2d 824 (Ala.1983), this Court reversed a summary judgment granted in favor of the defendant, City of Tuscumbia. In that case the plaintiff filed suit against the city, seeking to recover damages for its fire department's negligence in failing to immediately respond to a fire at his residence. The Court stated:
"`Cities and towns may maintain and operate a volunteer or paid fire department and may do all things necessary to secure efficient service....'
In City of Mobile v. Jackson, 474 So. 2d 644, 649 (Ala.1985), this Court refused to adopt the municipality's argument for substantive immunity:
"Next, the city cites Rich v. City of Mobile, 410 So. 2d 385 (Ala.1982), to support its proposition that it is substantively immune from suit in this case. In Rich, homeowners sued the city, alleging that a building inspector negligently inspected, or negligently failed to inspect, sewer lines connecting plaintiffs' residence to the main system. Rich created a narrow exception to the rule of general liability for municipalities in situations in which the public policy considerations of a city's paramount responsibility to provide for the public safety, health, and general welfare outweighed the reasons for the imposition of liability on the municipality. This exception to the general rule of liability, however, is to be applied only in `those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide such public services.' Rich, 410 So. 2d at 387.
We find this case to be controlled by Williams v. Tuscumbia, supra, and it follows that no municipal immunity exists under the circumstances of this claim. Accordingly, *1277 the summary judgment is reversed, and this cause is remanded for further proceedings. It is so ordered.
REVERSED AND REMANDED.
JONES, ALMON, SHORES and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting).
I respectfully dissent.
The Court first addressed the doctrine of substantive immunity in Rich v. City of Mobile, 410 So. 2d 385 (Ala.1982). In that case the plaintiffs' residence was connected to and served by the sewer system of the City of Mobile. The elevation of the residence was lower than that of the sewer system; and, because an overflow trap had not been installed in the line leading to the residence, a sewer line back-up overflowed into the plaintiffs' home. The plaintiffs filed suit against the City of Mobile, seeking damages for negligently failing to inspect or negligently inspecting the sewer lines connecting the plaintiffs' residence to the main system. The trial court dismissed the case. We affirmed, stating:
". . .
410 So. 2d at 386-88.
Approximately a year after Rich, this Court, in Williams v. City of Tuscumbia, 426 So. 2d 824 (Ala.1983), reversed a summary judgment granted in favor of the defendant, City of Tuscumbia. In that case the plaintiff filed suit against the city to recover damages for its fire department's negligence in failing to immediately respond to a fire at his residence. The Court stated:
"`Cities and towns may maintain and operate a volunteer or paid fire department and may do all things necessary to secure efficient service....'
"`narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide such public services.'
426 So. 2d at 826.
Thereafter in City of Mobile v. Jackson, 474 So. 2d 644 (Ala.1985), the Court affirmed a judgment based on a jury verdict in favor of the plaintiffs, the Jacksons, in a suit they brought against the City of Mobile seeking to recover for damages caused by the overflow of a drainage system that resulted in the flooding of their residence. The Court rejected the city's argument that it was substantively immune from liability:
"Next, the city cites Rich v. City of Mobile, 410 So. 2d 385 (Ala.1982), to support its proposition that it is substantively immune from suit in this case. In Rich, homeowners sued the city, alleging that a building inspector negligently inspected, or negligently failed to inspect, sewer lines connecting plaintiffs' residence to the main system. Rich created a narrow exception to the rule of general liability for municipalities in situations in which the public policy considerations of a city's paramount responsibility to provide for the public safety, health, and general welfare outweighed the reasons for the imposition of liability on the municipality. This exception to the general rule of liability, however, is to be applied only in `those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide such public services.' Rich, 410 So. 2d at 387.
474 So. 2d at 649.
Shortly thereafter, in Calogrides v. City of Mobile, 475 So. 2d 560 (Ala.1985), the Court affirmed a summary judgment granted in favor of the defendant City of Mobile. In Calogrides the plaintiff attended a fireworks display at Ladd Memorial Stadium that was sponsored in part by the city. After the plaintiff arrived and as he was walking up the stadium ramp to find a seat, he was assaulted by a group of five or six teenage males. Eighty-two police officers were assigned to the stadium for the fireworks display. The plaintiff filed suit against the city, alleging that it negligently or wantonly failed to provide him with adequate police protection. Applying the doctrine of substantive immunity, the Court held that municipalities are not liable for their failure to provide police protection. In pertinent part, the Court stated:
475 So. 2d at 561.
See also Garrett v. City of Mobile, 481 So. 2d 376 (Ala.1985) (companion case, following Calogrides, supra).
Clearly, the same public policy considerations that the Court found applicable in Rich, supra, Calogrides, supra, and Garrett, supra, are equally compelling in the present case. As Chief Justice Torbert noted in his dissent in Williams, fire protection is certainly one of those "narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart [a city's] legitimate efforts to provide such public services." 426 So. 2d at 826. Indeed, the evidence is undisputed in this case that the imposition of liability would threaten the defendant's efforts to provide adequate fire protection to all of its citizens.
Therefore, I would hold that the defendant is not liable for negligence in failing to provide fire protection. To the extent that Williams v. City of Tuscumbia, supra, is contrary, I would expressly overrule it. I can see no genuine issues of material fact; therefore, I think the decision of the trial court should be affirmed. Rule 56, Ala.R. Civ.P.
TORBERT, C.J., and MADDOX and STEAGALL, JJ., concur.
[1] Although the plaintiff alleged in her complaint that the defendant acted wantonly in failing to provide fire protection, there is no evidence in the record supporting that allegation. | August 28, 1987 |
dc6eb4aa-5914-477f-a4b6-a292b8f740ac | Robinson v. Kierce | 513 So. 2d 1005 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 1005 (1987)
Carl R. ROBINSON
v.
James B. KIERCE.
85-805.
Supreme Court of Alabama.
August 21, 1987.
*1006 George M. Higginbotham, Bessemer, for appellant.
Edward O. Conerly of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee.
HOUSTON, Justice.
A jury found for the defendant, James B. Kierce, in this action brought by Carl R. Robinson. Robinson appeals. We affirm.
The first issue presented for review is whether the trial court erred to reversal in not permitting Robinson to amend his complaint on the day of trial. This suit was filed September 14, 1981. The case was set for hearing on all motions on June 9, 1982. The complaint contained a single count claiming fraud. A motion to dismiss was overruled, but Robinson was required to plead fraud with more specificity. The first amendment to the complaint was filed on June 23, 1982, and stated only a fraud claim. On October 13, 1983, the case was set for trial during the week of February 6 or February 13, 1984, "or as soon thereafter as a civil jury is available." On March 13, 1984, the case was continued. The case was set on August 27, 1984, and was continued to October 15, 1984. The case was set for August 1985, but continued to be reset. The case was finally set for November 4, 1985. After the case was set, Robinson, on October 25, 1985, filed an amendment to his complaint without leave of court. The amended claim for recovery was based on fraud and mispresentation. On November 1, 1985 (three days before trial) another amendment to the complaint was filed alleging negligence and amending the ad damnum to $3.5 million. After the case was called for trial, a further amendment of the complaint was served in open court alleging fraud. On the same day, a further amendment was filed containing four counts. Count one was a fraud count. Count two alleged that Kierce exceeded the authority given him by his client (the former Mrs. Robinson, a defendant in this action) with regard to settlement of a matter regarding farm property in Morgan County, Alabama. Count three alleged that Kierce's petition for an attorney fee, out of the sale proceeds of the Morgan County property, was an abuse of process of the court to "extract or extort money" from Robinson. Count four alleged that Kierce was negligent toward his former client, Mrs. Robinson. Kierce made an oral motion to strike this amendment on the grounds that the amendment came too late and prevented Kierce from having a fair and impartial trial, and to prepare for defense in light of the new and additional claims; Kierce also based his motion on Robinson's having failed to comply with Rule 15, Ala.R.Civ.P., by not obtaining leave of court to file the amendment; and Kierce assigned lack of diligence on the part of Robinson as an additional ground for his motion to strike. The trial court granted Kierce's motion to strike as to all counts except count one, which alleged fraud and misrepresentation. In this appeal, Robinson claims that the trial court erred to reversal by not allowing the amendment claiming abuse of process.
Rule 15(a), Ala.R.Civ.P., in pertinent part provides as follows:
This is what is before this Court.[1]
In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So. 2d 1276 (Ala.1976), this Court said:
The trial court did not abuse its discretion in striking the abuse of process count under the facts herein before set out. See Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, supra; Burge v. Jefferson County, 409 So. 2d 800 (Ala. 1982); Arfor-Brynfield, Inc. v. Huntsville Mall Associates, 479 So. 2d 1146 (Ala.1985); Metropolitan Life Ins. Co. v. Sullen, 413 So. 2d 1106 (Ala.1982); Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So. 2d 469 (1975).
Robinson next contends that the trial court erred to reversal in not allowing evidence of a lawsuit by one Robert Weaver against Ester Robinson, a defendant below, involving Weaver's real estate commission on the sale of the property that is the basis for this fraud action against Kierce. This evidence was tendered to show Kierce's design and intent. The filing of a lawsuit, even as between the parties to a case, raises no presumption of any sort, certainly not a presumption of wrongdoing against one who was not a party to the lawsuit. The fact that Weaver filed a case against Ester Robinson, who is not a party to this appeal, could not possibly have any evidentiary value to prove intent or design on the part of Kierce. The complaint in a lawsuit is no more than the means of commencing an action, and the mere filing thereof does not import verity, even in the proceeding in which it was filed. A certain degree of proof is required before a plaintiff can recover. The idea that a complaint filed in one action can be introduced in another action to establish the truthfulness of the allegations in the complaint transcends our established rules of evidence. The trial court did not err in excluding this evidence.
Robinson next contends that the trial court erred to reversal in allowing the divorce decree in the divorce action between Ester Robinson and Robinson, which contained highly prejudicial matters, to go to the jury without making the deletions requested by Robinson. There is no support for this contention in the record. In response to Robinson's motion in limine, objectionable portions of the divorce decree were obliterated and an expurgated copy of the decree designated as Defendant's Exhibit No. 5, was substituted for the original and was received into evidence without objection. Kierce contended that the original, unexpurgated copy of the decree should go to the jury. The following transpired:
The record reveals that Exhibit A was identified as "COURT'S EXHIBIT A." Clearly marked on this was the notation "Not to go to jury." There is nothing in the record to show that Exhibit A did go to the jury except the following in the motion for new trial:
This is not supported by any affidavit or testimony that appears in the record. The trial court did not grant the motion for a new trial, and we will not assume that the matter that was so carefully dealt with by the court and counsel for Kierce led to some misunderstanding or accident that permitted Exhibit A to go to the jury. The burden was on Robinson to show that this did happen, and he has not met that burden.
Robinson next contends that the trial court erred in denying his motion in limine to prevent introduction of evidence of lawsuits filed by Robinson, a practicing attorney; he says this evidence was prejudicial to him.
On the day of trial, Robinson filed an amended motion in limine in which he sought to exclude the following:
During the hearing of the motion, the trial court made the following observation:
At this point, Robinson's attorney discussed another matter, which is not before us.
In his opening statement to the jury, Robinson's attorney stated: "There may be *1009 evidence introduced as to various lawsuits that he [Robinson] has participated in, lawsuits where he has been sued because his interests are varied, as you can imagine. And so, Dr. Robinson is no stranger to litigation, and he certainly doesn't back off from it."
Later in his opening statement, he added:
On cross-examination of Robinson, he was asked about a number of lawsuits that he had filed. No objection was interposed to the questions asked with reference to Robinson's previous litigation. Robinson failed to preserve any right of review by failing to object to the testimony when it was offered.
In Liberty National Life Insurance Co. v. Beasley, 466 So. 2d 935 (Ala.1985), this Court held as follows:
466 So. 2d at 936.
In the case of Murray v. Alabama Power Co., 413 So. 2d 1109 (Ala.1982), we dealt with a similar situation where the appellant presented a motion in limine to the trial court to prevent the mention of the plaintiff's remarriage, contending that it would be prejudicial and irrelevant to the lawsuit. The motion was denied. During voir dire examination of the jury, counsel asked the prospective jurors of their acquaintance with the plaintiff's present husband, Barrett. Holding that there was no reversible error, we dealt with the matter, in part, by stating the following:
We have consistently followed what appears to be the majority rule as indicated by Dean Charles W. Gamble, in his article entitled "The Motion in Limine: A Pre-trial Procedure That Has Come of Age," 33 Ala.L.Rev. 1 (1981). Robinson is in no position to claim error, because of his failure to obtain express acquiescence of the trial judge to the effect that subsequent objection to evidence proffered at trial and assignment of grounds therefor were not necessary.
In Baxter v. Surgical Clinic of Anniston, P.A., 495 So. 2d 652 (Ala.1986), we referred to Liberty National Life Insurance Co. v. Beasley, supra, and pointed out that where a motion in limine is denied and the subject evidence is introduced at trial without objection, there is no right to appeal from the court's ruling on the motion, since, under such circumstances, the error is waived unless the trial court clearly indicates that subsequent objection to such evidence is not necessary. The contention presented by Robinson is that the trial court erred in denying his motion in limine.
*1010 Therefore, since Robinson did not object to the evidence that he sought to exclude when it was proffered and did not obtain an express acquiescence by the trial court that such objections were not necessary, error, if any, in denying the motion is waived.
We also note that Robinson brought to the attention of the jury (in his opening statement) the very matter objected to a few minutes before. The trial court, according to pre-trial statements, agreed with Kierce that the testimony was admissible on the issue of reliance. Indeed, the courts have long recognized that great latitude is due to be permitted in the introduction of evidence in cases involving fraud. Where a question of fraud is involved, great latitude is ordinarily permitted in introduction of evidence, either to prove or disprove the fraud, although such latitude does not extend to allowing the introduction of evidence wholly immaterial or foreign to the issues, or irrelevant to the transaction involved, or of evidence otherwise in confidence.
No case has been cited to us, nor has our independent research revealed an Alabama case, dealing with the question of the relevancy of an offer of evidence to prove litigiousness of a plaintiff who has brought many lawsuits. The following appears in C. Gamble, McElroy's Alabama Evidence, § 70.04, at 173-74 (3d ed. 1977):
This need not be reached to dispose of this issue; and Judge McElroy wrote the last sentence of the quote in a less hurried time for more leisured bench and bar.
Robinson contends that the following portion of the trial court's oral charge, which was duly excepted to by him is erroneous:
Kierce had requested the following written charge, which was refused by the trial court:
The subject matter of this refused written charge was covered in the trial court's oral charge, to which Robinson excepted.
*1011 The gravamen of Robinson's claim of fraud was that Kierce had assured Robinson that Kierce's attorney fee would be paid out of $425,000 Robinson paid to Kierce's client, Ester Robinson, and that thereafter Kierce filed a motion for an award of an attorney fee and a fee of $45,000 was allowed to Kierce against Robinson. This decree was the subject matter of an appeal to the Alabama Court of Civil Appeals, and the Court of Appeals reversed, holding that the attorney fee could not be awarded under the circumstances involved. See, Robinson v. Robinson, 410 So. 2d 426 (Ala.Civ.App.1981).
This opinion of the Court of Civil Appeals was the subject of much discussion in the testimony presented in this case, and the opinion was offered in evidence as Kierce's Exhibit 4. The portion of the trial court's charge with respect to the opinion was simply to instruct the jury that the opinion in evidence did not amount to a finding by the Court of Civil Appeals that Kierce was guilty of fraud with respect to the transaction surrounding the attorney fee. We agree. The opinion in Robinson v. Robinson, supra, was received into evidence without objection. The jury could read the opinion and see that it did not find Kierce guilty of fraud. The elements of fraud were fully detailed for the jury in the trial court's oral charge, without exception or objection from Robinson.
There was no reversible error in the trial court's giving the charge, in light of the evidence introduced and under the circumstances herein set out.
There is no reversible error and the judgment should be affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur.
[1] Robinson's first issue is whether the trial court erred in refusing to allow him to amend his complaint to conform to the evidence; such an amendment would be governed by Rule 15(b). We have searched the record and have been unable to find that this amendment or any other verbal or written amendment was proffered seeking to have the pleadings conform to the evidence. | August 21, 1987 |
18520d85-ac3d-4b02-9621-34182bb6493c | Morris v. Westbay Auto Imports, Inc. | 512 So. 2d 1373 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1373 (1987)
James B. MORRIS
v.
WESTBAY AUTO IMPORTS, INC.
85-1368.
Supreme Court of Alabama.
August 14, 1987.
*1374 Vincent F. Kilborn III of Kilborn & Gibney, Mobile, for appellant.
Mylan R. Engel and Alex W. Zoghby of Engel, Walsh & Zoghby, Mobile, for appellee.
MADDOX, Justice.
Plaintiff James Morris appeals from a jury verdict for the defendant, Westbay Auto Imports, Inc. ("Westbay"). Specifically, Morris contends that the trial judge erroneously charged the jury concerning the issue of damages.
The evidence showed that Morris brought his 1979 Volkswagen Vanagon to Westbay, a Volkswagen dealership, to have it repaired. After inspecting the van, Westbay employees determined that the engine of the van should be replaced. A factory remanufactured engine was placed in the van.
Morris brought this action for fraud against Westbay, contending that Westbay had represented that the engine was new. Morris testified at trial that Westbay's service manager, Woody Dobbins, gave him three options to replace the bad engine: (1) He could purchase a rebuilt engine with used parts for $900; (2) He could purchase a rebuilt engine with new parts for $1,600; (3) He could purchase a new engine for $1,900. Morris testified that Dobbins never mentioned the term "remanufactured engine" to him. Morris testified that he decided to go with the third option, i.e., the new engine for $1,900, because it would be a new engine from the factory, and Westbay's mechanics would not have to assemble it. Morris told Dobbins that for the price difference between the new engine (third option) and the rebuilt engine with new parts (second option) of only $300, he would rather have a "new engine come straight from the factory than have to worry about down the road extra repairs because someone put it together incorrectly." After making his election to go with the third option, Morris instructed Westbay to go ahead and order the new engine.
Morris purchased the supposedly new engine from Westbay on May 3, 1984. The Vanagon van had 54,573 miles on it at that time. Morris was given Westbay invoice number 4761 reflecting the purchase. The invoice specifically states "Install new engine."
The invoice had stamped on it, on the left side, "ALL PARTS INSTALLED ARE NEW UNLESS SPECIFIED OTHERWISE." There was no notation on the invoice showing that the engine was not new.
Westbay contends that Morris was told that the engine was remanufactured; therefore, the evidence was conflicting. There is no dispute that Morris paid $1,926 for the engine, and that the fair market price of a remanufactured engine is approximately $1,900.
*1375 The trial judge, in his charge to the jury, stated:
Plaintiff objected to the charge. It is clearly erroneous, because "there is another well-settled rule pertaining to the measure of damages resulting from fraudulent conduct or representations, to the effect that such damages will be fixed by an amount which would place the defrauded person in the position he would occupy if the representations had been true." Fogleman v. National Surety Co., 222 Ala. 265, 268, 132 So. 317 (1931). Under the facts of this case, the charge given by the trial judge was prejudicial, especially because earlier in the charge the jury was instructed:
This instruction, coupled with the above quoted excerpt from the court's charges concerning damages, in effect, directs a verdict for the defendant.
Because the court incorrectly instructed the jury, based upon the evidence presented in the case, we are compelled to reverse the judgment and remand the cause for further proceedings.
REVERSED AND REMANDED.
ALMON, SHORES, ADAMS and HOUSTON, JJ., concur. | August 14, 1987 |
4122c4e4-c541-4073-ae3f-090853403938 | Ex Parte Warrior Basin Gas Co. | 512 So. 2d 1364 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1364 (1987)
Ex parte WARRIOR BASIN GAS COMPANY.
(In re TRE-J EXPLORATION, INC. v. WARRIOR BASIN GAS COMPANY, a Corp., and Tennessee Gas Pipeline Company, a Division of Tenneco, Inc.)
Ex parte TENNESSEE GAS PIPELINE COMPANY, A DIVISION OF TENNECO, INC.
(In re TRE-J EXPLORATION, INC. v. WARRIOR BASIN GAS COMPANY, a Corp., and Tennessee Gas Pipeline Company, a Division of Tenneco, Inc.)
85-1569, 86-1.
Supreme Court of Alabama.
August 7, 1987.
*1365 Lee H. Zell of Berkowitz, Lefkovits, Isom & Kushner, Birmingham, for petitioner Warrior Basin Gas Co.
Thomas A. Carraway, Birmingham and Mark D. Murr, Houston, Tex., for petitioner Tennessee Gas Pipeline Co.
Andrew P. Campbell and Jack W. Selden of Leitman, Siegal & Payne, Birmingham, for respondent Tre-J Exploration, Inc.
MADDOX, Justice.
These causes are here on petitions for writ of mandamus. The petitioners seek a writ of mandamus compelling the trial court to stay the pending litigation and to submit the parties' dispute to arbitration.
Petitioner Tennessee Gas Pipeline Company entered into a long-term "Master Agreement" with respondent, Tre-J, in which Tennessee Gas agreed to purchase natural gas from Tre-J's Blue Gut field, and Tre-J agreed to dedicate all of the reserves in that field to Tennessee Gas. The agreement was drafted by Tennessee Gas and contains an extensive arbitration clause.
In connection with the Master Agreement, Tennessee Gas agreed to allow petitioner Warrior Basin Gas Company to purchase the gas from Tre-J for a two-year period. This led to an agreement (the "Gas Purchase Contract") between Tre-J and Warrior Basin; it is that agreement that is in issue here. That agreement also was drafted by Tennessee Gas, and it also contains an arbitration clause. That clause reads as follows:
The subject contract also provided for the quantity of gas to be purchased:
The gas purchase agreement further provided that the price paid would be $2.65/MMBtu for the first six months, and it also provided for price adjustments every six months thereafter based on a Labor Department index.
Under the terms of the agreement, Tre-J would drill the wells and deliver the gas to a pipeline leading to the Tennessee Gas line. Tre-J was to be responsible for the testing and purification of its gas, with title to vest in Tennessee Gas only upon its entry into Tennessee Gas's pipeline.
Approximately ten months after Tre-J and Warrior Basin contracted, Warrior Basin requested that the price be lowered from $2.65 to $1.91/MMBtu. Tre-J refused to agree to that request. At a later date, Warrior Basin, by letter, demanded an immediate reduction to the desired price, *1366 which Tre-J again refused. No arbitration was initiated at that time. Instead, Warrior Basin notified Tre-J that it would thenceforth accept no more than 1,400 MMBtu per day.
Tre-J filed suit for specific performance and for preliminary and permanent injunctive relief, and sought a declaration that the contract required Warrior Basin to accept Tre-J's entire production, up to 10,000 MMBtu per day. Warrior Basin and Tennessee Gas promptly moved to compel arbitration under the terms of the gas purchase contract. The trial court found that, while the Federal Arbitration Act, 9 U.S.C. § 1, et seq., would apply, because interstate commerce was involved, the intent of the parties was that the arbitration clause did not apply to this type of dispute. Because we disagree with the conclusion reached by the trial court, we grant the writ.
The parties disagree on the controlling cases and the standard of review to be applied by this Court. In support of their petitions, Warrior Basin and Tennessee Gas rely on the language of the contract, and on the strong federal policy in favor of arbitration. Petitioners cite a number of federal cases in support of their position, including AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985); Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983); Nursing Home & Hospital Union No. 434 AFL-CIO-LDIU v. Sky Vue Terrace, Inc., 759 F.2d 1094 (3d Cir.1985); Wick v. Atlantic Marine, Inc., 605 F.2d 166 (5th Cir.1979); RPJ Energy Fund Management, Inc. v. Collins, 552 F. Supp. 946 (D.Minn.1982). Petitioners' cases amply support their contention that arbitration clauses are to be liberally construed in favor of arbitration, Mitsubishi, supra; Moses H. Cone, supra, and that an order to arbitrate a particular matter should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of interpretation that it covers the asserted dispute. AT & T Technologies, supra; Wick, supra.
In opposition to the petitions, Tre-J argues that, at its root, the dispute between the parties is merely a matter of contract interpretation and that it is to be governed strictly by contract principles; Tre-J, therefore, contends that the federal arbitration policy of requiring arbitration does not come into play until it is determined that the parties intended the arbitration clause to govern the particular issue in dispute. Tre-J contends that the parties did not intend this type of dispute to be the subject of arbitration. Further, Tre-J argues that, construing the contract against the drafter, Rivers v. Oakwood College, 442 So. 2d 74 (Ala.1983), the trial court correctly concluded that the parties intended only a narrow arbitration clause, one applying only to disputes over physical operations, i.e., drilling, pumping, and pipeline operations. On a factual issue of this sort, Tre-J argues, the decision of the trial court must be affirmed unless it is shown to be clearly erroneous. For these propositions, Tre-J cites AT & T Technologies, supra; Mitsubishi, supra; John F. Harkins Co. v. Waldinger Corp., 796 F.2d 657 (3d Cir.1986), cert. denied, ___ U.S. ___, 107 S. Ct. 939, 93 L. Ed. 2d 989 (1987); Twin City Monorail, Inc. v. Robbins & Myers, Inc., 728 F.2d 1069 (8th Cir.1984); Mediterranean Enterprises, Inc. v. Ssangyong Corp., 708 F.2d 1458 (9th Cir.1983); and Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343 (11th Cir.1982).
In support of its argument that the trial court correctly construed the language of the arbitration agreement, Tre-J introduced the text of the 15-year Master Agreement drafted by Tennessee Gas. That agreement read, in pertinent part, as follows:
Sections 5.5 and 10.2.3 provide as follows:
Tre-J cites this Master Agreement as an example of a broad arbitration agreement used by Tennessee Gas when it intends for arbitration to apply to all disputes over a particular provision.
The question of the effect of arbitration clauses in contracts involving interstate commerce has been to this Court frequently, of late, and the record indicates that both sides were aware that the scope of the arbitration clause in the present case would ultimately reach this Court. Even the trial judge anticipated that if he ruled as he did that this petition for mandamus would be filed, and the parties even speculated on the time it would require this Court to issue a ruling.[1] Even though it is apparent that the parties and the trial judge were aware that these petitions would be filed, we will address the legal issues presented as we understand them to be submitted to us.
The first issue we must address is the standard of review we must apply. Petitioners contend that we should review the trial court's refusal to stay this action pending arbitration without applying the traditional "clearly erroneous" standard. Respondent, on the other hand, strongly contends that the "clearly erroneous" standard is applicable. It cites Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1348-49 (11th Cir.1982), wherein the Eleventh Circuit Court of Appeals held that notwithstanding the applicability of the Federal Arbitration Act to an arbitration provision, the question of whether a contract's arbitration clause requires arbitration of a given dispute remains a matter of *1368 contractual interpretation to be determined by the intent of the parties. The Seaboard court wrote:
Seaboard, supra, at 1348-49. (Emphasis added.)
While petitioners contend that the "clearly erroneous" standard of review does not apply, petitioners nevertheless say that, even if that standard of review does apply, the trial court is due to be directed to stay proceedings in this case.
For the purposes of ruling on this petition for the writ of mandamus, we apply the traditional standard of review, and we assume that the trial court found, as a fact, that the parties did not intend for this particular dispute to be covered by the arbitration clause. In other words, although the finding of the trial court is not specific, we must assume that the trial judge, by denying the stay of proceedings pending arbitration, necessarily found that the parties did not intend for the arbitration clause to cover the dispute. We make this assumption based on the rule that "when the trial court makes no formal findings of fact, the reviewing court will assume that the trial court made those findings which will justify the decree rendered." Smith v. Citicorp Person-to-Person Financial Centers, Inc., 477 So. 2d 308, 309 (Ala.1985).
*1369 Our first task is to determine whether the parties here agreed to arbitrate the dispute, as a matter of law. There is no question that the contract is one involving interstate commerce and that it is governed by the provisions of the Federal Arbitration Act. In making our determination, therefore, it is our opinion that we must apply federal substantive law of arbitrability, and, as we understand that law, it states that the intent of the parties must control, but that intent is generously construed as to issues of arbitrability. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., supra.
The federal policy favoring arbitration of disputes in commercial contracts remains viable. In Shearson/American Express, Inc. v. McMahon, ___ U.S. ___, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987), respondents were customers of petitioner Shearson, a brokerage firm registered with the Securities and Exchange Commission, under customer agreements that provided for arbitration of any controversy relating to their accounts. Respondents had filed suit in the federal district court against Shearson and its representative who handled their account, alleging violations of the antifraud provisions in Section 10(b) of the Securities and Exchange Act of 1934 and SEC Rule 10(b)-5, and of the Racketeer Influenced and Corrupt Organizations Act (RICO). Petitioner moved to compel arbitration of the claims pursuant to Section 3 of the Federal Arbitration Act, which requires a court to stay its proceedings if it is satisfied that an issue before it is arbitrable under an arbitration agreement. The district court held that respondents' Exchange Act claims were arbitrable, but that their RICO claim was not. The Court of Appeals reversed as to the Exchange Act claim and affirmed as to the RICO claim. The Supreme Court held:
___ U.S. at ___, 107 S. Ct. at 2337-38.
In view of this latest expression of the intent of Congress in compelling arbitration when parties have agreed to arbitrate, we must apply principles that would foster the federal policy favoring arbitration. Applying the principles of law most recently stated in Shearson, we can conclude only that the trial judge erred in refusing to stay proceedings pending arbitration. We agree with petitioners that the trial judge's refusal to stay proceedings pending arbitration is not supported by an interpretation of the agreement. Even though we are aware that there was some testimony that the parties to the agreement discussed what "operations" would be covered under the terms of the arbitration clause, we would have to add the word "physical" in front of the word "operations" in the arbitration clause to sustain the order of the trial judge. This we cannot do, especially in view of the federal policy favoring arbitration and requiring courts to "rigorously" enforce arbitration agreements. In short, we cannot say, with positive assurance, that the arbitration clause was intended to exclude the dispute in this case. Cf. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 1352-53, 4 L. Ed. 2d 1409 (1960).
We hold that the words "operations" in the agreement to arbitrate covers the dispute in this case, as a matter of law.
In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 941-942, 74 L. Ed. 2d 765 (1983), the Court said:
Based on the above, we are of the opinion that the petitions for writ of mandamus are due to be granted.
WRIT GRANTED.
JONES, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur.
ALMON, J., concurs in the result.
STEAGALL, J., not sitting.
[1] At one point in the proceeding, the trial judge stated:
"For the record and perhaps anticipating, if you do go mandamus, that this will narrow it somewhat. The Court is of the opinion that the question of interstate commerce would be resolved, is resolved in the Court's mind, this Trial Judge's mind in favor of defendants but not the interpretation of the arbitration phrase in SectionWhat is it, 21? Section 21.
"So, I wanted to state those grounds so there is no mistake in Montgomery and we are going to deal with interstate commerce down there as far as I am concerned. I think it is interstate commerce."
At another point, he noted:
"THE COURT: As I understood the parties are satisfied with that, is the information I had, if the Court's ruling be that the motion to stay be granted, and the question the Court posed to counsel for Warrior Basin and Tennessee was whether or not that would be agreeable if the Court's ruling be the opposite way which would be the denial of the motion to stay with the Court expecting that those two parties would mandamus and the Court understanding that that is an order for which mandamus would lie from this Court immediately to the Alabama Supreme Court. Is that
"MR. ZELL: Yes, sir.
"THE COURT: Did I state it fairly there?
"MR. ZELL: I hope you did, Your Honor." | August 7, 1987 |
397d999c-2032-426c-9952-651ef00848f9 | Ex Parte Brooks | 513 So. 2d 614 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 614 (1987)
Ex parte J. Wynell BROOKS, guardian ad litem for David Carlton Stephenson, a Minor.
Re: In the Matter of David Carlton STEPHENSON, a minor.
No. 85-1115.
Supreme Court of Alabama.
July 31, 1987.
*615 J. Wynell Brooks, guardian ad litem, Birmingham, for petitioner.
J. Gary Pate of Najjar, Denaburg, Meyerson, Zarzaur, Max, Boyd & Schwartz, Birmingham, for respondent Sharon Reiss Stephenson.
ADAMS, Justice.
This is a case of first impression in Alabama and involves the termination of parental rights. The divorced parents of David Carlton Stephenson asked the trial court to terminate the parental rights of the child's father. The District Court of Jefferson County denied the parents' petition on the grounds that there was no evidence that David was harmed by the father and that David's future rights to support, parental affiliation, and inheritance would not be protected by the termination of the father's parental rights. The Court of Civil Appeals found that the ore tenus rule was inapplicable in this case and concluded that termination of the father's parental rights was appropriate because he had abandoned his son. We granted the guardian ad litem's petition for writ of certiorari, and the Court heard argument in the case en banc. We reverse the judgment of the Court of Civil Appeals.
The facts reveal that the parents were divorced when the mother, Sharon Reiss Stephenson, was three months pregnant with David. The divorce came about mainly because Mrs. Stephenson would not agree to her husband's insistence that she have an abortion. Since birth, David, who is now four years old, has lived with his mother and his half-sister. The father has never attempted to see David and, except for contributing $100.00 to Mrs. Stephenson's hospital expenses for childbirth, has contributed nothing to David's support.
*616 At the time the Court of Civil Appeals released its opinion in this case in April 1986, the father was 28 years old and the mother was 33 years old. Mr. Stephenson is a deputy sheriff and earns approximately $750.00 biweekly. Mrs. Stephenson works as a bookkeeper, credit worker, Avon saleslady, seamstress, notary public, and child-care worker, and earns aproximately $1,200.00 per month (about $14,400.00 per year). Mrs. Stephenson owns her home and is current with all outstanding debts. She maintains a $100,000.00 life insurance policy on David's father which names David as the beneficiary.
Mrs. Stephenson seeks termination of Mr. Stephenson's parental rights, she contends, because he has shown no interest in David, lacks stability, is ill-tempered, and disapproves of her raising David as a Jew. She professes concern over a possible future custody dispute and disagreements with her former husband regarding David's upbringing.
Mr. Stephenson concurs with his former wife that he generally disagrees with her regarding child-rearing; however, he says he believes Mrs. Stephenson should rear David and has said that he has no interest in visiting his son. He agrees with Mrs. Stephenson that David's best interest would be served by terminating his (Mr. Stephenson's) parental rights.
The principal question before us is whether a parent's child support obligations may be waived by a joint petition for termination of parental rights. David's guardian ad litem argues that termination of the father's parental rights in this case is: (1) contrary to the intent of the Alabama Child Protection Act when no adoption is contemplated; (2) contrary to public policy; (3) impermissible when a less drastic remedy would better serve the child's interests; (4) improper when the petitioners have failed to prove permanent incompetency and unsuitability by clear and convincing evidence; and (5) erroneous without a finding that the child is dependent. Mrs. Stephenson argues that all criteria necessary to show abandonment have been established and that a court-appointed social worker has recommended termination of the father's parental rights.
The Court of Civil Appeals has held previously that termination of a father's parental rights requires clear and convincing evidence that termination would be in the child's best interest. Miller v. Alabama Dep't of Pensions & Sec., 374 So. 2d 1370 (Ala.Civ.App.), writ quashed, 374 So. 2d 1378 (Ala. 1979); In re Sanders, 420 So. 2d 790 (Ala.Civ.App.1982). Ala.Code (1975), § 26-18-7, provides, in part, that abandonment, failure to provide support when the parent is able to do so, and failure of the parent to maintain "consistent contact or communication with the child," are factors which may be considered, among others, in determining whether to permit voluntary relinquishment of parental rights. In the present case, the Court of Civil Appeals found that Mr. Stephenson had abandoned his son and held that the abandonment justified the termination of the father's parental rights.
The purpose of the 1984 Child Protection Act is stated in § 26-18-2, which provides, in part:
The trial court concluded that termination of Mr. Stephenson's parental rights would not serve David's best interest. We agree.
Mrs. Stephenson asks for termination of her former husband's parental rights in order to avoid the possibility of future disagreements or a custody conflict with him concerning David. Mr. Stephenson has shown absolutely no interest in his son and would escape any obligation to support David if his parental rights were terminated. As appellant has ably argued, the 1984 Child Protection Act was not intended as a means for a parent to avoid his obligation to support his child. Were we to concur with the Court of Civil Appeals in this *617 instance, we would satisfy the objectives of the parents at the child's expense.
Before parental rights will be terminated, the Court must determine from clear and convincing evidence that the child is dependent and, after having made a finding of dependency, must determine whether there exists a remedy less drastic than termination of those rights. Clemons v. Alabama Dep't of Pensions & Sec., 474 So. 2d 1143 (Ala.Civ.App.1985); Fortenberry v. Alabama Dep't of Pensions & Sec., 479 So. 2d 54 (Ala.Civ.App.1985); Brand v. Ala. Dep't of Pensions & Sec., 479 So. 2d 66 (Ala.Civ.App.1985). The Court of Civil Appeals made no finding of dependency in the present case and appears not to have considered alternatives less drastic than termination of Mr. Stephenson's parental rights. (See Clemons, supra, Fortenberry, supra, and Brand, supra.) No evidence was produced at trial, and no argument has been made, that Mr. Stephenson has harmed or has in any way interfered with Mrs. Stephenson's custody of the child. Termination of the father's parental rights in this case would seem to us to be an unnecessarily drastic action not supported by clear and convincing evidence. Although we agree that Mr. Stephenson's conduct toward his son may satisfy the criteria set forth in Ala.Code (1975), §§ 26-18-3 and 26-18-7(c), as constituting "abandonment," termination of his parental rights appears to be overwhelmingly for the convenience of the parents. By mutual consent, Mr. and Mrs. Stephenson seek to waive David's right to receive support from his father although the child would receive nothing in return.
Our courts are entrusted with the responsibility of determining the best interests of children who come before them. When a child's welfare is threatened by continuation of parental rights, the law provides a means for terminating those rights. When, after consideration of all evidence before it, a court determines that termination of parental rights would not serve the best interest of a child, as in the present case, parental rights should not be terminated. Convenience of the parents is not a sufficient basis for terminating parental rights.
Even if Mr. Stephenson chooses not to establish contact with his son, David's right to receive support from his father remains. The Child Protection Act of 1984, as we have noted, was not intended as a means for allowing a parent to abandon his child and thereby to avoid his obligation to support the child through the termination of parental rights. The courts of this State will not be used in the furtherance of such a purpose.
In the absence of clear and convincing evidence that termination of Mr. Stephenson's parental rights is the appropriate remedy, we cannot agree with the Court of Civil Appeals that the trial court erred in denying the Stephensons' petition. We hold that the judgment of the District Court of Jefferson County was correct in concluding that David Carlton Stephenson's best interestsparticularly his right to receive support from his fatherwould not be protected by termination of the father's parental rights. The judgment of the Court of Civil Appeals is, therefore, reversed, and a judgment is rendered denying the termination of parental rights.
REVERSED AND JUDGMENT RENDERED.
MADDOX, JONES, ALMON, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur. | July 31, 1987 |
b9c3c7b7-8bb7-4acc-a9d1-a3a74a4552d3 | Ex Parte Lawley | 512 So. 2d 1370 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1370 (1987)
Ex parte Gerald Wayne LAWLEY.
(Re: Gerald Wayne Lawley v. State of Alabama).
86-264.
Supreme Court of Alabama.
August 7, 1987.
*1371 J. Frank Head of Wallace, Ellis, Head & Fowler, Columbiana, for petitioner.
Don Siegelman, Atty. Gen., and J. Elizabeth Kellum, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
This Court granted this petition for certiorari to review petitioner's claim that when he entered a plea of guilty to a charge of murder his counsel told him he would be eligible for parole within 54 months, and that in fact he was not eligible for parole within that time, and that he would not have entered a plea of guilty had he known the facts, and that his counsel was ineffective in advising him about his rights.
Petitioner, Gerald Wayne Lawley, pleaded guilty to a charge of murder on April 9, 1984, and was sentenced by the Circuit Court of Shelby County to 25 years in the penitentiary. He subsequently filed a petition for writ of habeas corpus on September 30, 1985, and a petition for writ of error coram nobis on October 24, 1985, in which he claimed that his trial counsel was ineffective. The State filed an answer on December 6, 1985, and the trial court held a hearing on February 6, 1986, and rendered a judgment in favor of the State on both petitions.
Petitioner appealed to the Court of Criminal Appeals; that court affirmed and then denied petitioner's application for rehearing and his motion to add facts pursuant to Rule 39(k), Ala.R.App.P. 502 So. 2d 402 (Ala.Cr.App.1986).
After reviewing the record and the respective briefs of the parties, we affirm.
At the hearing, petitioner testified that his attorney informed him that he would be eligible for parole in just 54 months and that at that time a hearing would be conducted on the question of parole. He stated that he would not have pleaded guilty if he had known he would not be eligible for parole after 54 months.
Petitioner's father, who was present at the meeting between petitioner and his attorney, testified that he believed his son would be eligible for parole in 54 months, but that the attorney made no guarantees that petitioner would actually be paroled in 54 months.
*1372 Other witnesses testified that petitioner told them that he would plead guilty, would serve around four years in prison, and then would be paroled.
Petitioner's trial counsel, however, testified that (at his client's request) he investigated the possibility of parole and found out that petitioner would become eligible for parole at some point from 54 to 100 months after his sentence began, but that nothing was guaranteed. He said that he then relayed this information to petitioner, but that at no time did he tell petitioner that he would be considered for parole in 54 months. He did testify that he advised petitioner to accept the State's offer of a 25-year sentence for the murder charge in exchange for the State's dropping a theft charge, because it was his opinion that based on the circumstances involved, petitioner would receive the maximum sentence possible if he went to trial and was found guilty of murder.
Based on these facts, the trial court could have found that petitioner was not denied his constitutional right to effective assistance of counsel.
Under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by this Court in Ex parte Baldwin, 456 So. 2d 129 (Ala.1984), a two-pronged test must be met before a claim of ineffective assistance of counsel is proven. A convicted defendant, in order to secure a reversal of his conviction, must show: (1) that counsel's performance was deficient, which requires a showing that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment; and (2) that the deficient performance prejudiced defendant, which requires a showing that a different outcome of the trial probably would have resulted but for counsel's allegedly ineffective performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064.
To meet the first prong of the test, the petitioner must show that his counsel's representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel's assistance was reasonable, considering all the circumstances. Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065.
In adjudging the effectiveness of a counselor's assistance, a "court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066. Moreover, that petitioner was convicted does not prove that counsel lacked zeal or competence. Summers v. State, 366 So. 2d 336 (Ala.Cr.App.), writ denied, 366 So. 2d 346 (Ala.1978). "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission was unreasonable." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065.
Even assuming, arguendo, that defendant's counsel erred and that this error was professionally unreasonable, that would not in and of itself warrant setting aside the judgment of a criminal proceeding if the error did not affect the judgment. Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066. The defendant must affirmatively prove prejudice; that is, he "must show that there is a reasonable probability, that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065. Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable and those strategic decisions made after less than complete investigation are "reasonable precisely to the extent that reasonable professional judgments support the limitations *1373 on investigation." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066.
In this case, counsel's investigation has not been shown to have been unreasonable, nor has his strategy been shown to have been outside the realm of reasonable assistance of counsel. Yet, even if counsel committed what appears in retrospect to have been a tactical error, that does not automatically mean that petitioner did not receive an adequate defense in the context of the constitutional right to counsel. Summers v. State, 366 So. 2d at 341, citing Tillis v. State, 292 Ala. 521, 296 So. 2d 892 (1974). "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066. "[A]ny deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Strickland, 466 U.S. at 692, 104 S. Ct. at 2067.
Furthermore, in Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the United States Supreme Court stated that in order to satisfy the prejudice requirement, a petitioner who has been convicted on a guilty plea must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
In a coram nobis proceeding, petitioner bears the burden of presenting satisfactory proof of his claim. Chapman v. State, 412 So. 2d 1276 (Ala.Cr.App.1982). We find that petitioner has failed to meet this burden of proof. Our examination of the record indicates that the trial court could have found that petitioner's defense counsel did not even commit error. Defense counsel testified that he informed petitioner that he would become eligible for parole sometime between 54 and 100 months after conviction. There was documentary evidence presented from which the trial judge could have drawn this inference also. Petitioner, of course, testified that he thought that he would be out on parole in 54 months. His belief was not completely supported by the testimony of his father, who was also present at the conversation between the defendant and his attorney. Although petitioner's father said he was under the impression that his son would be eligible for parole in 54 months, he testified that he understood from the comments made by his son's attorney that his son was not guaranteed parole in 54 months.
After reviewing the record thoroughly, we are of the opinion that the Court of Criminal Appeals did not err in affirming the trial court's denial of the petition for writ of error coram nobis. The judgment of the Court of Criminal Appeals is due to be, and it is hereby, affirmed.
AFFIRMED.
JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
TORBERT, C.J., not sitting. | August 7, 1987 |
07343a82-1248-464f-a892-0134d0f76ecf | Hughes v. Decatur General Hosp. | 514 So. 2d 935 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 935 (1987)
Sandra HUGHES, Administratrix of the Estate of Alice Hendon Wheeler, Deceased
v.
DECATUR GENERAL HOSPITAL.
86-9.
Supreme Court of Alabama.
September 18, 1987.
*936 Paul J. Matthews II, Hartselle, for appellant.
Joe Calvin, Decatur, for appellee.
STEAGALL, Justice.
Sandra Hughes, as administratrix of the estate of Alice Wheeler, deceased, appeals from a summary judgment granted in favor of Decatur General Hospital. We affirm.
On August 24, 1985, Wheeler was employed by Decatur General as a licensed practical nurse. On this date Wheeler worked on the 3:00 p.m. to 11:00 p.m. shift. At approximately 11:20 p.m., after Wheeler had completed her shift, she was walking to her car, which was parked in a parking lot maintained by Decatur General for business invitees, visitors, and employees of Decatur General. The parking lot was located across 7th Street, S.E., which ran adjacent to the main buildings of Decatur General and which Wheeler had to cross in order to get to the parking lot where her car was parked. While attempting to cross 7th Street, S.E., Wheeler was struck by an automobile; she suffered injuries that resulted in her death. She left no surviving dependents.
Hughes, as administratrix of the estate of Wheeler, filed an action for wrongful death against Decatur General and others, alleging that the actions and negligence of the defendants caused Wheeler's death. Decatur General filed a motion for summary judgment, asserting that, at the time of the accident, Wheeler was acting within the line and scope of her employment with Decatur General, and arguing, therefore, that any cause of action Hughes had for the death of Wheeler was subject to Alabama's Workmen's Compensation Act, which provides the exclusive rights and remedies of Wheeler. Decatur General's motion for summary judgment was granted and a final judgment was entered with respect to Decatur General on August 21, 1986.
Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.; Moesch v. Baldwin County Electric Membership Corp., 479 So. 2d 1271 (Ala.Civ.App.1985).
*937 If an employee was acting within the line and scope of her employment at the time of her injury, then that injury falls within the Workmen's Compensation Act. Ala.Code 1975, § 25-5-1 et seq.
The general rule is that an employee injured while on the way home or to work or to a place not required by duty is not covered by the Workmen's Compensation Act. Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813 (1932). However, the Court recognized an exception to this rule in Barnett, 225 Ala. at 463, 143 So. at 813, wherein the Court stated:
In that case the Court held that the injury incurred by the plaintiff/employee, who slipped on the sidewalk a few feet outside the only entrance to the employer's premises just before time to start to work, arose out of and in the course of employment.
In United States Steel Corp. v. Martin, 267 Ala. 634, 104 So. 2d 475 (1958), this Court held that an ironworker, who got a "catch" in his back while changing clothes in preparation for work in a room furnished by his employer, sustained an injury arising out of and in the course of his employment. The Court stated as follows:
United States Steel Corp. v. Martin, 267 Ala. at 636, 104 So. 2d at 476.
Most courts consider parking lots owned or maintained by an employer as part of the employer's premises whether the lots are within the main company premises or separated from it. 1 Larson, The Law of Workmen's Compensation, § 15.42(a), pp. 4-87 through 4-98 (1985). Furthermore, most courts hold that an injury incurred on a public street or other places off premises between the employer's plant and the parking lot arises out of or in the course of employment if it is a necessary route between the two premises. 1 Larson, The Law of Workmen's Compensation, § 15.14(b), pp. 4-49 through 4-51 (1985).
When the accident in the instant case occurred, Wheeler was leaving the main premises of Decatur General and crossing a public street in order to reach a parking lot owned and maintained by Decatur General for use by its employees and visitors. Based upon the rationale of the foregoing Alabama cases and Larson's treatise, we hold that Wheeler's injury arose out of and in the course of her employment with Decatur General.
Hughes, as administratrix of the estate of Wheeler, arguesbecause Wheeler left no dependents and, therefore, there is no recovery to be had under the Workmen's Compensation Act for death damagesthat the Workmen's Compensation Act does not provide the exclusive remedy in this case, and that the Workmen's Compensation Act and Alabama's wrongful death statute should be construed together to allow her, as administratrix of Wheeler's estate, to bring a wrongful death action against Decatur General. Hughes relies upon Braxton v. Dixie Electric Coop., *938 Inc., 409 So. 2d 822 (Ala.1982), as authority for her argument. The issues in Braxton were whether a wrongful death action, filed by the only dependent of a deceased employee, who was covered by workmen's compensation, survived the death of the dependent and whether that wrongful death action could be maintained against the employer's workmen's compensation carrier. The Court held that the action survived but could not be maintained against the workmen's compensation carrier.
In Slagle v. Reynolds Metals Co., 344 So. 2d 1216 (Ala.1977), this Court held that Alabama's Workmen's Compensation Act provides the exclusive remedy against an employer for the death of an employee when the fatal injury arose out of or in the course of employment and that this is the case even when the employee died leaving no dependents so that in effect there was no recovery for death damages to be had under the Act.[1] The Court pointed out that in death cases the Legislature has provided that workmen's compensation is the exclusive remedy against employers and said that even though the Act's provisions amounted, in effect, to a grant of employer immunity in the case of an employee who died without surviving dependents, that legislative grant of immunity is not violative of due process or equal protection principles. See also Lackey v. Jefferson Energy Corp., 439 So. 2d 1290 (Ala.Civ.App. 1983), and Ala.Code 1975, § 25-5-53.
In Holliday v. C.T. Thackston Sand & Gravel Co., 361 So. 2d 13 (Ala.Civ.App. 1978), the administratrix of the employee's estate filed suit against the employer, alleging that the estate was entitled to benefits under article 2 of the Workmen's Compensation Act relating to compensation by civil actions. The Court of Civil Appeals held that article 3 of the Workmen's Compensation Act was applicable to the death of an employee whose death arose out of and in the course of his employment, even though the employee left no surviving dependents and the maximum benefits payable under article 3 on behalf of an employee without surviving dependents is smaller than those benefits payable on behalf of an employee with surviving dependents.
In the instant case, we find that Wheeler's death is subject to article 3 of Alabama's Workmen's Compensation Act even though Wheeler died leaving no dependents. Therefore, the administratrix of Wheeler's estate is not entitled to bring a wrongful death action against Decatur General, because the Workmen's Compensation Act provides Wheeler's exclusive remedies.
Based upon the foregoing, we hold that the trial court did not err in granting summary judgment for Decatur General.
AFFIRMED.
TORBERT, C.J., and SHORES and ADAMS, JJ., concur.
JONES, J., concurs specially.
JONES, Justice (concurring specially).
Adhering to the precedent cited, as well as to the earlier Fifth Circuit Court of Appeals case of Patterson v. Sears-Roebuck & Co., 196 F.2d 947 (5th Cir.1952), I concur in the opinion. I write separately, however, to express my personal view of the rank injustice of these holdings. My point is dramatized by the next to last paragraph of the majority opinion: "[T]he administratrix of Wheeler's estate is not entitled to bring a wrongful death action against Decatur General, because the Workmen's Compensation Act provides Wheeler's exclusive remedies." In other words, the opinion holds that the employer is covered by the Act, thus invoking the exclusive remedy clause, but no obligation is imposed on the employer pursuant to the Act. The law's rationale for this incongruity *939 is based on a legal fiction: that the law furnishes a remedy under the Act; but, because the deceased employee left no dependents, no one is eligible to pursue the remedy and, thus, no recovery is allowed. This rationale acknowledges that, to invoke the exclusivity clause, it is essential that the Act provide a remedy. Recovery, however, is barred because the Act vests the right of action for death (the right to pursue the remedy) only in dependents of the deceased worker. To paraphrase one of Dickens's characters in A Tale of Two Cities, if the law would do this thing (indulge a senseless fiction), "the law is a ass."
Public policy ought not to tolerate a nonsensical, life-indifferent result: to kill is cheaper than to injure. A remedy contemplates the interaction between the obligee and the obligor. It must operate not only in favor of the one but against the other. Not even the no-fault concept of workmen's compensation alters this basic premise. Indeed, in other contexts, the Court has not permitted the exclusivity defense when to do so would leave the injured worker remediless. For example, the Court, in Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937), sustained the injured employee's right to sue at common law for the contraction of an insidious disease (one not caused by an accidentinjuries caused by accident being the only injuries covered by the Act).
I conclude by noting an extreme irony in this particular case. In order to invoke the exclusivity clause, the employer (here, its insurance carrier) urges a finding of coverage under the Act, whereas, under circumstances other than death, the coverage issue would have been strongly contested (and, in my opinion, with a high probability of success). The ultimate irony, then, is that a trial judge (the judge in the instant case excepted, of course) with a pro-employer philosophy, would fashion his findings of fact to exclude coverage in an injury context, based upon an "arising out of and in the course of employment" defense, while that same trial judge would find coverage in a death case to invoke the exclusivity defense. It's a crazy world!
[1] While the plaintiff in Slagle argued that he had been "provided with no remedy for the death of his minor son," apparently the employer had paid medical and funeral expenses and had made payment to the "Second Injury Trust Fund." These payments are apparently the payments the Court of Civil Appeals, in Holliday v. C.T. Thackston Sand & Gravel Co., 361 So. 2d 13 (Ala.Civ.App. 1978), would characterize as "the relatively meager benefits received in comparison to those allowed if employee left dependents." 361 So. 2d at 14. | September 18, 1987 |
010cc155-2e50-466b-9e18-312e7cb6c8e8 | Reeves v. Alabama Land Locators, Inc. | 514 So. 2d 917 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 917 (1987)
Grady REEVES and Homer Reeves
v.
ALABAMA LAND LOCATORS, INC., et al.
86-716.
Supreme Court of Alabama.
September 11, 1987.
Robert W. Barr, Troy, for defendants-appellants.
Louis C. Rutland, Union Springs, for plaintiffs-appellees.
HOUSTON, Justice.
The defendants, Grady Reeves and Homer Reeves, appeal from the judgment of the trial court in favor of the plaintiffs, Alabama Land Locators, Inc., Harry Lee Manuel, Jr., and Jan S. Manuel, in this action seeking a declaration of rights to real property. We affirm.
The defendants conveyed a 200-acre tract of land to Joe Clark and Rody Stovall by two separate warranty deeds on July 29, 1981. Those deeds were recorded in the probate judge's office on July 31, 1981. On the day the property was conveyed to Clark and Stovall, Clark executed a "Lease of Hunting Rights" to the defendants, purporting to give them the exclusive right to hunt on the property. Although Stovall did not sign the lease, the absence of his signature is not an issue in the case. The lease, which was for a term of 25 years, was not recorded in the probate judge's office until January 31, 1984. Clark and Stovall conveyed the property to Boyd Foster and Walter Rainey by warranty deed on August 7, 1981. That deed was recorded in the probate judge's office on August 12, 1981. Foster and Rainey conveyed the property to Alabama Land Locators, Inc., *918 by warranty deed on April 29, 1986. That deed was recorded in the probate judge's office on May 19, 1986. Alabama Land Locators, Inc., conveyed 80 acres of the 200-acre tract to the Manuels by warranty deed on May 19, 1986, and that deed was recorded in the probate judge's office on that same day. The lease of hunting rights was not referred to in any of these deeds. Foster testified at trial that he had no knowledge of the hunting lease when he purchased the property and that, had he known of it, he would not have purchased the property. He testified further that he did not learn of the lease until after he sold the property to Alabama Land Locators, Inc. Alabama Land Locators, Inc., and the Manuels did not learn of the lease until after May 19, 1986. Title examinations made in connection with the sale of the property did not reveal the lease. Several witnesses testified that hunting rights constitute a large part of the value of a piece of property.
The plaintiffs filed a declaratory judgment action in the Circuit Court of Bullock County, seeking a declaration as to the validity of the hunting lease. Following a hearing, the trial court ruled that the lease was void. Thus, the sole issue in this case is whether the trial court ruled correctly.
The defendants rely on § 35-4-6, Code 1975. That section reads as follows:
Under this section, a lease for more than 20 years is void for the excess over 20 years unless it is acknowledged or approved as required by law in conveyances of real estate and recorded within one year after its execution. The defendants concede that their lease was not recorded within one year after its execution; therefore, they only contend that they have a valid 20-year lease. The defendants argue that, under § 35-4-6, a 20-year lease does not have to be recorded in the probate judge's office in order for it to be valid as against a subsequent purchaser of the property for a valuable consideration without actual knowledge of the lease. This argument is based on the fact that § 35-4-6 requires that leases exceeding 20 years be recorded in the probate judge's office in order to be valid. It is insisted that § 35-4-6 by implication excludes leases of 20 years or less from the recording requirement of the Recording Act, § 35-4-90, Code 1975.
The plaintiffs rely on § 35-4-90. That section provides, in pertinent part, as follows:
The plaintiffs argue that the lease in question is a "conveyance of real property" within the meaning of the statute. They argue further that their predecessors in the chain of title, Foster and Rainey, purchased the property without knowledge of the lease; therefore, they say, they now have title to the property free and clear of the interest claimed by the defendants. We agree.
The right to hunt upon the land of another is a profit a prendre. Jones v. Davis, 477 So. 2d 285 (Ala.1985); See also Thompson on Real Property, §§ 135 to 140 (1980). The "profit a prendre," which derives its name from the French, means "profits to take," the phrase "from land" being implied. A profit a prendre is a right exercised by one man in the soil of another, accompanied with participation in the profits of the soil, or a right to take a part of the soil or of the produce of the land. Thompson on Real Property, § 139 (1980). The right to cut and remove timber from the lands of another is also a profit a *919 prendre. Ladd v. Smith, 107 Ala. 506, 18 So. 195 (1894). It has been held in Alabama that a lease of timber rights is a conveyance of real property within the meaning of § 35-4-90. In Milliken v. Faulk, 111 Ala. 658, 20 So. 594 (1896), the trial court ruled that an unrecorded timber lease was void as to a bona fide purchaser of the land. This Court affirmed, stating:
Therefore, it follows that the lease in question is a conveyance of real property within the meaning of § 35-4-90.
Section 35-4-6 deals with the validity of a lease as between the parties to the lease. It is unnecessary for us to speculate as to why the legislature chose to include in that section a recording requirement that would render void between the parties that portion of an unrecorded lease exceeding 20 years. Section 35-4-90 deals with the validity of an unrecorded lease as between a party to the lease and a subsequent purchaser of the property without actual knowledge of the lease. Although an unrecorded 20-year lease is valid under § 35-4-6 as between the parties to it, it is not valid as against a subsequent purchaser of the property without actual knowledge of the lease. Section 35-4-90 was clearly intended to protect innocent purchasers of real property.
*920 This rule has been extended so that a person, even though he has knowledge of a previous claim or interest in land, may purchase from a bona fide purchaser and receive clear title. Walker v. Wilson, 469 So. 2d 580 (Ala.1985). The reason is well stated in 77 Am.Jur.2d Vendor and Purchaser § 718 (1975):
The evidence in the present case shows that the hunting lease was not on record at the probate judge's office at the time Clark and Stovall conveyed the property to Foster and Rainey. As a result, Foster and Rainey did not have constructive knowledge of the lease. Foster testified that he had no actual knowledge of the lease and the court found that to be a fact; therefore, for the reasons aforestated, the plaintiffs now have title to the property free and clear of the leasehold interest claimed by the defendants.
We disagree with the defendants' contention that knowledge of the lease must be imputed as a matter of law to Foster and Rainey because the same attorney who drafted the lease also drafted the deed to Foster and Rainey and provided them with a title opinion. The defendants' reliance on First Alabama Bank of Huntsville v. Key, 394 So. 2d 67 (Ala.Civ.App.1981), is misplaced. In that case the Court of Civil Appeals held that whether the bank had actual knowledge of the plaintiffs claim to the property by virtue of a communication made to the bank's attorney was a question of fact for the trial court sitting without a jury. The trial court found that the bank had actual knowledge of the adverse interest, and the Court of Civil Appeals concluded that that finding was supported by the evidence. In the present case, the trial court, sitting without a jury, found that Foster and Rainey had no actual knowledge of the lease when they purchased the property. Our review of the record indicates that that finding is supported by the evidence.
Moreover, we can find no evidence in the record tending to show that the attorney in question was actually aware of the lease at the time he prepared the deed and title opinion for Foster and Rainey. It goes without saying that attorneys handling real estate transactions on a daily basis review many legal descriptions and prepare numerous documents. The fact that the attorney did not advise Foster and Rainey of the lease seems to indicate that he did not recall preparing the lease on the property in question. Of course, because the lease had not been recorded at the time Foster and Rainey purchased the property, it was not discovered when the attorney did his title examination. Under these circumstances, we simply cannot impute knowledge of the lease to Foster and Rainey.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur. | September 11, 1987 |
c583d2a2-1eac-4e45-a701-95db8d6a66a7 | Sims v. Knollwood Park Hosp. | 511 So. 2d 154 | N/A | Alabama | Alabama Supreme Court | 511 So. 2d 154 (1987)
Eulyn H. SIMS
v.
KNOLLWOOD PARK HOSPITAL.
85-609.
Supreme Court of Alabama.
March 27, 1987.
As Modified on Denial of Rehearing July 10, 1987.
Taylor D. Wilkins, Jr., of Wilkins, Bankester & Biles, Bay Minette, for appellant.
Jerry A. McDowell and Davis Carr, Mobile, for appellee.
BEATTY, Justice.
Appeal by plaintiff, Eulyn H. Sims, from a judgment entered upon a jury verdict for the defendant, Knollwood Park Hospital, in plaintiff's action based upon negligence and breach of an implied agreement. We reverse and remand.
While a patient at Knollwood, plaintiff had surgery for the removal of her gallbladder. She was placed in the intensive care unit of the hospital. While there, Mrs. Sims fell from a chair in which she had been placed and sustained a hip fracture.
Mrs. Sims's complaint against the hospital contained two counts. Count I alleged that the defendant negligently caused or allowed plaintiff to fall and injure herself while in the intensive care unit, with the proximate consequence being her permanent injury; pain; and mental anguish. Count II alleged an implied agreement, for a consideration, to treat, nurse, care for, and observe plaintiff while she was a patient, and a breach of that agreement to her injury.
Defendant hospital answered, denying any negligence and any implied agreement. Trial by jury ensued, with plaintiff withdrawing Count II, the allegation of an implied agreement. The jury returned a verdict for the defendant on Count I.
Plaintiff has presented a number of issues for our review. Among these is the trial court's denial of a discovery request made by plaintiff concerning an "incident report."
Plaintiff filed a motion to produce which sought "[a]ll written reports, memoranda or notes concerning the fall of Eulyn H. Sims in the Intensive Care Unit at Knollwood Park Hospital." Defendant objected to the production, with the following response:
Plaintiff then moved for an order for production contending she was entitled under Rule 26, A.R.Civ.P., to peruse the incident report prepared by hospital personnel concerning her fall. The trial court ordered production of the document, reviewed it in camera, denied plaintiff's motion, and ordered the document sealed. Plaintiff's motion for reconsideration of this order was denied. Subsequently, the trial court granted defendant's motion in limine prohibiting reference to the incident report during trial.
In reviewing this issue, it is important to consider that the gist of plaintiff's action was that she was allowed to fall from the chair in which hospital personnel had placed her. The following facts concerning that event illuminate plaintiff's purpose in attempting to obtain the incident report.
The nurse in charge of plaintiff at the time of her fall was Mrs. Armita Underwood, who testified as follows:
Apparently Mrs. Underwood had testified by deposition to the same effect.
The deposition of Dr. Lozier, one of Mrs. Sims's attending physicians, varied somewhat from Mrs. Underwood's account:
A comparison of Mrs. Underwood's testimony with that of Dr. Lozier reveals contradictory aspects which might have been either clarified, on the one hand, or accentuated on the other, by the contents of the "incident report." The "incident report" may have contained relevant information, indeed, on the merits of the case, i.e., the negligence vel non of the hospital staff.
The response of defendant's counsel to the trial court's order to produce the "incident report" is revealing in regard to the character and nature of that report. We quote from counsel's letter, which is contained in the record:
Although the hospital concluded that this document was prepared in anticipation of litigation, that conclusion, we respectfully observe, must be tested by applying the rules of discovery to the circumstances of the incident report's creation.
Rule 26(b)(1) permits discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." When it is asserted that an otherwise discoverable document was made "in anticipation of litigation," the objecting party bears the burden of proving the elements of the work-product exception of Rule 26(b)(3). Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).
A case analogous to the instant situation arose in Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So. 2d 228 (Ala.1978). In that case, civil litigants sought to discover a transcript of a statement made by a person whose activities were being investigated by the district attorney's office. The district attorney's office opposed discovery of the document on the ground that it was the "work product" of that office. In deciding against that position, this Court stated, at 232:
*157 "The `work product' argument is inapplicable because:
The defendant's own description of the need for such "incident reports," moreover, is revealing, for it states that "[t]his document is prepared when an incident occurs at the hospital which might result in some legal action." That is to say, while "incidents" that in someone's opinion might result in legal action may not in themselves be routine, it is the routine of the hospital to make an "incident report" when such incidents do occur.
Of course, such a speculation as to possible litigation is not enough to cloak those reports with the protection given an attorney's work product. Binks Manufacturing Co. v. National Presto Industries, Inc., 709 F.2d 1109, 1118-19 (7th Cir.1983), contains relevant discussion and evaluation of that premise:[1]
"Similarly, we find persuasive the court's reasoning in Janicker v. George Washington University, 94 F.R.D. 648, 650 (D.D.C.1982):
"The court in Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 865 (D.C.Cir.1980) held that the party seeking to assert the work product privilege has the burden of proving that `at the very least some articulable claim, likely to lead to litigation, [has] arisen.'" (Emphasis added.)
That court concluded at 1120:
Nor does it aid the defendant that this incident report was turned over to a "risk manager" and ultimately made its way to "the legal department." In Rakus v. Erie-Lackawanna R.R., 76 F.R.D. 145 (W.D.N. Y.1977), the incident reports prepared by a railroad supervisor and a division engineer for the railroad's claims department were held not to have been made in anticipation of litigation. "If defendants' argument were upheld," the court pithily observed, "all discovery of intercompany reports would be subject to the requirements of rule 26(b)(3) in any case where the company maintained a claims department. This position is untenable."
We conclude that this "incident report" was not a "work product" falling within the trial preparation exception of Rule 26(b)(3), A.R.Civ.P. In reaching that conclusion, we observe that in essence there was no difference in the preparation of this report and the preparation of the statements referred to in Assured Investors Life Ins. Co., supra, or the letters in *159 question in Binks Manufacturing Co., supra. See also APL Corporation v. Aetna Casualty & Surety Co., 91 F.R.D. 10 (D.Md.1980).
We are not unmindful of the broad discretionary power given to the trial court in the discovery process, as noted in Campbell v. Regal Typewriter Co., 341 So. 2d 120 (Ala.1976). The question in such cases as Regal and the instant case "becomes one of whether, under all the circumstances, the trial court has abused its discretion." Campbell, at 123. Under the circumstances of the preparation of this report, however, and the principles of law applicable thereto, we must conclude that the trial court erred in denying production of the document and subsequently granting defendant's motion in limine. That error must, and does, result in reversal of the judgment below, and this cause is remanded for a new trial.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur.
REATTY, Justice.
OPINION MODIFIED; APPLICATION OVERRULED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur.
[1] "Our Rules of Civil Procedure are based upon, and are strikingly similar to, the Federal Rules of Civil Procedure. Because these two sets of Rules are virtually verbatim, a presumption arises that cases construing the Federal Rules are authority for construction of the Alabama Rules." Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So. 2d 228, 231 (Ala.1978). | July 10, 1987 |
42ef2eb1-9eba-4fff-abc7-d864665f8edb | Stark v. Troy State University | 514 So. 2d 46 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 46 (1987)
Paul E. STARK
v.
TROY STATE UNIVERSITY, et al.
86-317.
Supreme Court of Alabama.
August 21, 1987.
*47 J. Victor Price, Jr., Montgomery, for appellant.
Dow T. Huskey, Dothan, for appellees.
HOUSTON, Justice.
The plaintiff, Paul Stark, appeals from the granting of a motion to dismiss in favor of defendant Troy State University and from a summary judgment granted in favor of defendants Dr. Ralph W. Adams, individually and as Chancellor of the Troy State University System, and Robert M. Paul, individually and as Chief Executive Officer of Troy State University at Dothan/Ft. Rucker,[1] in this declaratory judgment action seeking an injunction and compensatory damages. We affirm.
The plaintiff was an assistant professor in the School of Business of Troy State University at the Dothan/Ft. Rucker campus between 1980 and 1985 (beginning with the fall quarter of 1980 and running through the spring quarter of 1985). The plaintiff alleged in his complaint that between 1980 and 1985 the university's policies were not followed with regard to the scheduling of overloads and summer session pay. The complaint, in pertinent part, reads as follows:
"WHEREFORE, the petitioner requests... the following relief:
The policies referred to in the plaintiff's complaint are set out in two "Faculty Handbooks"the 1976 Faculty Handbook for the Troy State University System and the 1983 Faculty Handbook for Troy State University at Dothan/Ft. Rucker. The 1976 handbook provided that a normal teaching load during the academic year was 15 quarter hours per quarter for undergraduate classes and 10 quarter hours per quarter for graduate classes. A combination of undergraduate/graduate classes totaling 15 quarter hours constitutes an overload. The 1976 handbook also provided that if any faculty member's teaching schedule had to be increased in any quarter, he or she would be compensated by receiving a "proportionately-reduced schedule in a subsequent quarter." It also stated that during the summer session a faculty member had to teach at least 12 quarter hours in order to receive full salary and that if less than 12 quarter hours were taught, the faculty member was to be compensated on a prorated basis.[2]
These policies were changed slightly in the 1983 handbook, which became effective in the fall quarter of 1983. The teaching load for undergraduate classes became 44 to 46 quarter hours per academic year, the load for graduate classes became 34 to 36 quarter hours per academic year, and when a combination of undergraduate and graduate classes were taught, the load was 39 to *49 41 quarter hours per academic year. In the 1983 handbook there is no requirement for a proportionately reduced schedule in a subsequent quarter. Instead, it provides that overloads can be taught only during alternate quarters. The summer session policy did not change.[3]
Beginning in the fall quarter, 1980, the plaintiff taught the following schedule:
The individual defendants implemented a policy that faculty members who taught a combination of undergraduate and graduate classes totaling 15 quarter hours in any quarter must be scheduled to teach a total of only ten quarter hours the next "teaching session" in which a combination of undergraduate and graduate classes were taught, be it a "summer session" or a quarter in the "academic year." See notes 1 and 2. This policy was explained to the members of the faculty in a 1978 memorandum *50 from Dr. J. Wyatt Grimmer, Dean of Academic Affairs, and in a 1982 memorandum from Dr. Eugene Calvasina, Dean of the School of Business. Each of the plaintiff's "overload" quarters during the period in question was the result of his teaching a combination of undergraduate and graduate classes. If the policy implemented by the individual defendants is the policy of the university, then the plaintiff is not entitled to injunctive relief, because, as shown above, that policy was followed with respect to the plaintiff.
The plaintiff contends that during the period in question he was "overloaded" six quartersSpring 1981, Spring 1982, Fall 1982, Fall 1983, Spring 1984, and Winter 1985but received only three "reduced" quarter schedules during that timeSpring 1983, Winter 1984, and Spring 1985. As we understand his argument, the plaintiff claims that it was contrary to the university's policy to count the summer sessions of 1981, 1982, and 1984 as "proportionately-reduced schedules." Thus, the plaintiff's position apparently is that it was the university's policy to compensate faculty members who had been overloaded in a particular quarter by giving them a proportionately-reduced schedule in a subsequent quarter of an academic year.
Initially we should note that a motion to dismiss is proper when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Jeannie's Grocery v. Baldwin County Elec. Mem. Corp., 331 So. 2d 665 (Ala.1976). Here, because Troy State University is constitutionally immune from suit, its motion to dismiss was properly granted. Taylor v. Troy State University, 437 So. 2d 472 (Ala.1983).
A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981).
The individual defendants argue that as employees of the university they are agents of the State of Alabama and, therefore, that they too are constitutionally immune from suit. In Taylor v. Troy State University, supra, the Court noted:
437 So. 2d at 474.
Based on the foregoing, if the individual defendants have not acted toward the plaintiff in accordance with the rules and regulations set by the university, their acts are arbitrary and an action seeking to compel them to perform their legal duties will not be barred by the sovereign immunity clause of the Alabama Constitution of 1901; however, the action for compensatory damages cannot be maintained. The reason was stated in Gunter v. Beasley, 414 So. 2d 41 (Ala.1982):
"`... In determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought. Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So. 2d 428 (1967). This Court has held that § 14 prohibits suit against State officers and agents in their official capacity or individually when a result favorable to the plaintiff would directly affect a contract or property right of the State. Southall v. Stricos Corp., 275 Ala. 156, 153 So. 2d 234 (1963).'" (Emphasis added.)
414 So. 2d at 48.
The individual defendants also argue that there is no genuine issue concerning their implementation of the university's overload or summer session pay policies and, therefore, that they are entitled to a judgment as a matter of law. We agree.
In their affidavits, which were submitted in support of the motion for summary judgment, Dr. Adams, Dr. Grimmer, and Robert Paul stated that at all times the policies established by the university had been followed. In addition, both the 1976 and 1983 Faculty Handbooks clearly show that the procedure implemented by the individual defendants were not in conflict with the policies established by the university. Both handbooks stated that a school year is comprised of two "Teaching Sessions." (See notes 1 and 2.) One teaching session is referred to as the "Academic Year" and is 10 months in duration. The other teaching session is referred to as the "Summer Session" and is two months in duration. In both teaching sessions the schedules are computed on a "quarter hour" basis. There is nothing in the record tending to show that a quarter hour of credit earned by a student in a summer session does not count the same toward graduation requirements as a quarter hour of credit earned during a quarter in the academic year. Moreover, it is stated in the 1978 handbook that "Because summer enrollment is usually much lower than the enrollment of other quarters, it is not possible to guarantee summer employment to faculty members." (See note 1.) The plaintiff introduced no evidence in opposition to the motion for summary judgment tending to show that it was contrary to the university's policy to count summer sessions as "proportionately-reduced schedules."
Furthermore, it is undisputed that the plaintiff received full pay during the 1981, 1982, and 1984 summer sessions.
For the foregoing reasons the dismissal of Troy State University and the summary judgment for the individual defendants are affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, BEATTY and STEAGALL JJ., concur.
[1] There is no evidence in the record tending to show that the individual defendants acted in anything other than their official capacities in their dealings with the plaintiff.
[2] The pertinent portions of the 1976 handbook read as follows:
"TEACHING SESSIONS
"1. FULL-TIME
"a. ACADEMIC YEAR. It is the policy of the University System to employ the faculty on a ten-month basis for the academic year. Faculty members may elect to distribute their salary for the academic year over a period of twelve months. Normally, the teaching schedule for undergraduate classes is fifteen quarter hours or the equivalent. For graduate classes, the normal schedule is ten quarter hours or the equivalent. A faculty member's teaching schedule may be reduced for special assignments or for duties not usually associated with classroom teaching. In the event a faculty member's teaching schedule must be increased because of an emergency or unusual condition, the increase will be a temporary one and the faculty member will be compensated by a proportionately-reduced schedule in a subsequent quarter.
"b. SUMMER SESSION. The summer session normally consists of eight weeks. Summer employment is offered to a limited number of faculty members who are paid two additional months' salary at the same monthly rate they are paid during the academic year, provided they teach the equivalent of twelve quarter hours during the summer. Faculty members who teach fewer than twelve quarter hours or the equivalent during the summer are compensated on a pro-rated basis.
"Because summer enrollment is usually much lower than the enrollment of other quarters, it is not possible to guarantee summer employment to faculty members. The selection of the summer faculty is largely determined by the qualifications requisite for the courses being offered. A faculty member who desires summer employment should inform his Department Chairman of that desire in writing not later than March 1 of an academic year."
[3] The pertinent portions of the 1983 handbook read as follows:
"TEACHING SESSIONS
"ACADEMIC YEAR: It is the policy of TSU D/FR to employ the faculty on a ten-month basis for the academic year. Normally, the teaching load requirement is as follows:
"1. When the graduate student enrollment of a combination graduate/undergraduate course is ten or more, the course will be considered a graduate course for computation in teaching loads or payment for overload teaching.
"2. All TSU D/FR full-time faculty and staff may teach only one course per quarter as an overload and may teach an overload only during alternate quarters. Exceptions to this policy may be made in emergency situations with the approval of the appropriate Academic Dean and the Dean of Academic Affairs.
"B. SUMMER SESSION: The summer session normally consists of eight to nine weeks. While it is not possible to guarantee summer employment, it will be offered to a limited number of faculty members who are paid at the same monthly rate they are paid during the academic year provided they teach from 12 to 15 quarter hours. If the faculty member teaches fewer than 12 quarter hours, his salary will be prorated according to the number of hours taught. The teaching load requirement for summer faculty shall be the same as the teaching load during the regular academic year. Summer contracts will be offered to full-time faculty members strictly on the basis of TSU D/FR needs. Faculty members should notify the appropriate Academic Dean in writing not later than March 1 concerning their availability status." | August 21, 1987 |
6fc785e1-5fd0-4195-ace0-0d7582bdcf35 | Ex Parte McKinney | 515 So. 2d 693 | N/A | Alabama | Alabama Supreme Court | 515 So. 2d 693 (1987)
Ex parte Wallace R. McKINNEY IV.
(In Re Robert and Karen LANE v. E.F. HUTTON & COMPANY, INC., and Wallace R. McKinney IV).
86-324.
Supreme Court of Alabama.
August 21, 1987.
*694 James F. Duffy, Jr., of Inge, Twitty, Duffy & Prince, Mobile, for petitioner.
Paul W. Brock and Orrin K. Ames III of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, and Charles A. Gilman and Robert A. Alessi of Cahill, Gordon & Reindell, New York City, for respondents.
MADDOX, Justice.
On January 20, 1987, the petition for mandamus was denied, without opinion. See 514 So. 2d 350 (Ala.1987). The petitioner has filed an application for rehearing.
This petition for writ of mandamus involves a question of whether a dispute was subject to arbitration under the provisions of the Federal Arbitration Act. In order to answer that question, we must determine whether there was a valid enforceable arbitration agreement that applied to the dispute, and whether the party moving for arbitration had waived its right to have the controversy arbitrated because it had substantially invoked the judicial process.
On January 4, 1984, Robert and Karen Lane commenced a lawsuit in the Circuit Court of Mobile County captioned Robert Lane and Karen Lane v. E.F. Hutton & Company, Inc. and Wallace R. McKinney IV, No. CV-84-000018. The Lanes alleged that, in reliance upon misrepresentations made to them by Hutton and McKinney, who acted as the Lanes' account executive, they purchased a single premium deferred annuity (SPDA) policy issued by an insurance company that subsequently experienced financial difficulties, and that because of the fraud practiced upon them by the defendants they were damaged substantially.
On May 2, 1984, McKinney, the petitioner here, answered the Lane complaint and cross-claimed against Hutton, alleging that (1) if he made any misrepresentations to the Lanes, such misrepresentations were based upon information provided to him by Hutton, and (2) the Lane lawsuit had caused him mental anguish and had caused damage to his reputation. Hutton answered the Lane complaint and McKinney's cross-claim on September 24, 1984, and filed a cross-claim against McKinney in which it alleged that, if McKinney made any misrepresentations to the Lanes concerning their SPDA policy, he acted beyond the scope of his employment with Hutton and should be held liable to Hutton for indemnity if Hutton were found liable to the Lanes.
The Lanes' suit is one of several cases filed against Hutton and Hutton employees in the Circuit Court of Mobile County, arising out of Hutton's marketing of the SPDA involved in the Lane suit. It is one of several in which this petitioner, McKinney, is, and was, named as a defendant along with his employer, Hutton. The lawsuit filed by the Lanes against Hutton and McKinney was the first lawsuit to be filed, however.
Because there were approximately 50 of these lawsuits filed against Hutton and employees of Hutton, such as McKinney, the then-presiding judge of the Circuit Court of Mobile County, the Honorable *695 Robert E. Hodnette, Jr., entered an order consolidating all of the cases for the purpose of discovery, and designated Robert T. Cunningham, Jr., counsel for the Lanes, as chief counsel in charge of all "general" discovery for all plaintiffs in all of the cases and, until his retirement, Judge Hodnette handled all discovery motions, pleadings, other motions, etc., in all of the cases.
After the filing of the lawsuit by the Lanes, and the entry of the consolidation order, there were approximately 115 depositions taken by the parties.
Hutton took McKinney's pre-trial deposition on five occasions (September 27, 1984; May 14, 1985; May 15, 1985; April 28, 1986, and May 8, 1986). Hutton also propounded two sets of interrogatories, and Hutton filed several motions in the court in connection with the pending claims.
Just prior to May 19, 1986, the day on which the case was to be tried in the Circuit Court of Mobile County, Hutton entered into a settlement agreement with the Lanes, which resulted in the dismissal of the Lanes' case against Hutton and McKinney.
There remained, however, the cross-claims of McKinney against Hutton, and Hutton against McKinney, and a conference was then held in the chambers of Judge Douglas I. Johnstone, to whom the case had been reassigned, with regard to the rescheduling of the trial of the issues embraced in those cross-claims.
The cross-claim of McKinney against Hutton in the Lane lawsuit was then scheduled for trial on September 22, 1986. Hutton dismissed its cross-claim against McKinney on September 8, 1986, and on the next day, September 9, 1986, which was over two years after the date McKinney had filed his cross-claim against it, Hutton moved for an order compelling arbitration and a stay of the proceedings pending arbitration, contending that the case between it and McKinney became arbitrable for the first time when the settlement was reached by and between Hutton and the Lanes. The motion was supported by documents containing what Hutton contended, and contends in its response to this petition, is a valid arbitration agreement by and between McKinney and it.
On September 12, 1986, after receiving extensive briefing on Hutton's motion to compel arbitration and after entertaining oral argument on the motion on September 5 and 11, 1986, Judge Johnstone held that McKinney's claims against Hutton must be stayed pending arbitration. He entered the following order:
On September 25, 1986, McKinney moved for reconsideration of Judge Johnstone's September 12, 1986, order compelling arbitration. After receiving additional briefing and hearing further oral argument on October 24, 1986, Judge Johnstone denied McKinney's motion for reconsideration in a written order dated November 10, 1986. In that order, Judge Johnstone, being advised by McKinney's counsel that he would seek a writ of mandamus from this Court, did stay his order to compel arbitration until this Court acted on the mandamus petition.
On December 8, 1986, McKinney petitioned this Court for a writ of mandamus to Judge Johnstone. Upon receipt of McKinney's petition and Hutton's letter response dated December 17, 1986, this Court denied McKinney's petition on January 20, 1987.
Dissatisfied with this Court's decision, McKinney petitioned the Court on February 3, 1987, for a rehearing on his petition for a writ of mandamus. A majority of this Court set aside its January 20, 1987, *696 order denying McKinney's petition for a writ of mandamus, and directed Hutton to respond to McKinney's petition.
The matter was presented orally before the Court, and is now ripe for resolution.
First, we address our scope of review. This is a mandamus petition, and this Court has said many times that "[m]andamus is an extraordinary remedy, which should be granted only when there is a clear showing that the trial court abused its discretion." Ex parte Lang, 500 So. 2d 3, 5 (Ala.1986). See, also, Ex parte Hartford Ins. Co., 394 So. 2d 933, 936 (Ala.1981), wherein this Court stated that "[m]andamus itself is an extraordinary remedy which should only be granted when there is a clear showing that the trial court abused its discretion and exercised it in an arbitrary or capricious manner."
We have examined the record and related material forwarded to this Court by McKinney and Hutton and we are of the opinion that Judge Johnstone very carefully considered and analyzed the issues presented on Hutton's motion to compel arbitration, and that he held three separate hearings at which oral arguments were presented by McKinney and Hutton concerning each of the matters raised in the petition for mandamus. The record shows that Judge Johnstone reviewed the briefs and affidavits submitted by the parties and questioned counsel on all relevant issues, and that only then did he issue a written order holding that McKinney is obligated under the controlling arbitration agreements to submit his claims to arbitration.
Judge Johnstone allowed McKinney a final opportunity to present arguments in opposition to Hutton's motion to compel arbitration on October 24, 1986, in connection with McKinney's motion for reconsideration. Upon further consideration of the issues, and despite having been made aware of McKinney's intention to seek a writ of mandamus if the circuit court ruled against him, Judge Johnstone again concluded, in a written order dated November 10, 1986, that arbitration was mandated.
Based on this record, we cannot conclude that Judge Johnstone abused his discretion or exercised it in an arbitrary or capricious manner. Quite to the contrary, the record reflects that Judge Johnstone gave due consideration to the arguments of both sides; therefore, the writ is not due to be granted on the proposition that the trial judge did not adequately consider the matter.
Hutton contends that in view of the fact that Judge Johnstone did give due consideration to the matter before him, this Court should deny McKinney's petition without reaching the merits of the arbitration issue. This we decline to do.
The question of whether McKinney agreed to arbitrate this particular dispute between him and Hutton is a substantial one, and if we hold that the parties did agree to arbitrate, there is a more substantial question whether Hutton waived its right to compel arbitration.
The first question we consider is whether McKinney agreed to submit the dispute between him and Hutton to arbitration. McKinney contends that he did not. We disagree. We find substantial evidence to support the finding of the trial judge that there was a valid, binding arbitration agreement between McKinney and Hutton. McKinney signed at least three agreements upon which the trial court could have found him obligated to arbitrate this dispute between him and Hutton.
On October 10, 1980, McKinney executed a New York Stock Exchange agreement ("Form 4-80"), pursuant to paragraph (d) of which he agreed to the following dispute-resolution procedure:
On October 10, 1980, McKinney also executed an American Stock Exchange agreement in which he expressly agreed to be bound by the arbitration provisions contained in the respective Rules and Constitutions of the American Stock Exchange and the New York Stock Exchange:
Finally, on April 27, 1981, McKinney executed a "uniform Application for Securities Industry Registration" ("Form U-4"), pursuant to paragraph 5 of which he agreed "to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register." (Emphasis added.) (Hutton Appendix, Exhibit I.)
In all three of the above-quoted agreements, which Judge Johnstone had before him on Hutton's motion to compel arbitration, McKinney agreed to comply with and be bound by the constitution and rules of the New York Stock Exchange and to submit to its jurisdiction. Article XI, Section 1, of the New York Stock Exchange constitution provides:
Similarly, Rule 347 of the New York Stock Exchange specifically provides for arbitration of disputes arising out of employment or the termination of employment:
It is not disputed that all of the claims advanced by McKinney against Hutton arise out of the course of his employment with Hutton; therefore, we hold that the trial court did not abuse its discretion in holding that the claims must be arbitrated in accordance with his arbitration agreements and the rules of the New York Stock Exchange.
McKinney relies upon a California case, Chan v. Drexel Burnham Lambert, Inc., 178 Cal. App. 3d 632, 223 Cal. Rptr. 838 (1986), to support his argument that there was no agreement to arbitrate. In Chan, the account executive had executed an agreement pursuant to which he agreed generally to be bound by the "Statute(s), Constitution(s), Rule(s) and By-Laws" of the organization to which he was applying for membership. 178 Cal. App. 3d at 636, 223 Cal. Rptr. at 840. The court held that, under California law, the arbitration rule (Rule 347) of the New York Stock Exchange was not incorporated by reference into the general agreement signed by the account executive, noting that the agreement before that court did not even mention the word "arbitration." The court held:
"* * *
Unlike the agreement executed by the account executive in Chan, however, each of the three agreements executed by McKinney states on its face that the parties thereto agree to arbitrate any disputes arising among them.
We think Chan is inapposite for a further reason. A majority of this Court, when first faced with the question of whether a state court should enforce the provisions of the Federal Arbitration Act, held that the Federal Arbitration Act did not pre-empt state law regarding arbitration, and that an agreement to arbitrate a future dispute violated the public policy of this state. Ex parte Alabama Oxygen Co., 433 So. 2d 1158 (Ala.1983) (Maddox, J., dissented, joined by Torbert, C.J.). On appeal, the Supreme Court of the United States vacated the judgment and remanded the case to this Court for further consideration. York International v. Alabama Oxygen Co., 465 U.S. 1016, 104 S. Ct. 1260, 79 L. Ed. 2d 668 (1984). On remand, this Court held that the views expressed in the dissenting opinion on original deliverance were consistent with the holding in Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984), and denied the writ of mandamus. Ex parte Alabama Oxygen Co., 452 So. 2d 860 (Ala.1984).
This Court now follows the rule that when there is an agreement to arbitrate a dispute under the provisions of the Federal Arbitration Act, this Court will enforce that agreement, in accordance with the federal policy as expressed in the Federation Arbitration Act and court decisions construing that Act. See Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272 (Ala. 1986).
The federal courts have held that the arbitration provisions of the New York Stock Exchange are incorporated into Form U-4 and thus made binding on the parties. In Coenen v. R.W. Pressprich & Co., 453 F.2d 1209 (2d Cir.), cert. denied, 406 U.S. 949, 92 S. Ct. 2045, 32 L. Ed. 2d 337 (1972), a member of the Exchange sued a member firm on a dispute involving the unrestricted transfer of stock. The trial court stayed the action pending arbitration, holding that, in agreeing to abide by the rules and constitution of the Exchange, Coenen had agreed to submit to arbitration "any controversy," including the one at issue, with a member firm. In affirming the lower court's decision, the Second Circuit held:
"`The constitution and rules of a stock exchange constitute a contract between all members of the exchange with each other and with the exchange itself...
"`Since the rules of the Exchange `constitute a contract between the members, the arbitration provisions which they embody have contractual validity....' The Exchange provisions requiring arbitration constitute an agreement to arbitrate which is binding upon both [parties].'
"* * *
"* * *
*699 "The drafters of the New York Stock Exchange arbitration clause intended it to be very broad.... The purpose behind the drafting of such a broad arbitration clause was, as much as possible, to keep disputes between members out of the courts. This policy is entirely consistent with the congressional grant of power to Stock Exchanges to govern themselves, contained in the Securities Exchange Act of 1934.... To hold that the present dispute is not arbitrable would frustrate this policy by making two Stock Exchange members settle their dispute in court....
453 F.2d at 1211-12 (citations omitted). See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 941-942, 74 L. Ed. 2d 765 (1983) (citing Coenen, supra, the Court held that "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability") (footnote omitted); Tullis v. Kohlmeyer & Co., 551 F.2d 632, 636 (5th Cir.1977) ("[t]he crucial issue, as ... Coenen ... make[s] clear, is whether the party seeking to avoid arbitration is a member of the Exchange and thus has agreed to arbitration of disputes").
In Aspero v. Shearson American Express, Inc., 768 F.2d 106 (6th Cir.), cert. denied, 474 U.S. 1026, 106 S. Ct. 582, 88 L. Ed. 2d 564 (1985), a former account executive brought suit against her former employer, claiming defamation and intentional infliction of emotional distress as a result of alleged conduct by her office manager following the termination of her employment. The Sixth Circuit held that, although the plaintiff alleged tortious acts by her former employer that occurred after her termination, she was required to arbitrate her dispute in accordance with the arbitration provisons contained in her employment contract and Rule 347 of the New York Stock Exchange:
"* * *
Accord, Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163 (8th Cir.1984); Zolezzi v. Dean Witter Reynolds, Inc., 789 F.2d 1447 (9th Cir.1986).
It is clear that the Federal Arbitration Act establishes a strong federal policy favoring arbitration, requiring that the courts "rigorously enforce" arbitration agreements. The latest expression of this policy is set forth in Shearson/American Express, Inc. v. McMahon, ___ U.S. ___, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987). There, respondents were customers of petitioner Shearson/American Express, Inc., a brokerage firm registered with the Securities and Exchange Commission, under customer agreements providing for arbitration of any controversy relating to their accounts. That case presented two questions. The first was whether a claim brought under § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 48 Stat. 891, 15 U.S.C. § 78j(b), must be sent to arbitration in accordance with the terms of an arbitration agreement. The second was whether a claim brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et *700 seq., must be arbitrated in accordance with the terms of such an agreement. The Court held:
The next question we address is whether, under the facts of this case, Hutton made a timely demand for arbitration. The trial court specifically found that there was no waiver by Hutton. We agree.
*701 Because arbitration is so strongly favored, "`the burden on one seeking to prove waiver is a heavy one.'" Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1, at 2 (Ala.1986) (quoting American Dairy Queen Corp. v. Tantillo, 537 F. Supp. 718, 720 (M.D.La.1982)). As set forth recently by this Court, to demonstrate waiver, McKinney must establish that (1) Hutton "substantially invoked the litigation process"; and (2) McKinney "suffered prejudice as a result." (Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 494 So. 2d at 3.) See also Ex parte Costa & Head (Atrium), Ltd., supra, 486 So. 2d at 1276-77.
The Alabama rule is the same one that has been applied in other courts. In Masthead Mac Drilling Corp. v. Fleck, 549 F. Supp. 854 (S.D.N.Y.1982), the court held that waiver of arbitration under federal arbitration law cannot be found in the absence of a showing of substantial prejudice. There, the court held that the commencement of litigation by the moving party did not, of itself, constitute a waiver of arbitration rights.
In Brown v. E.F. Hutton & Co., 610 F. Supp. 76 (S.D.Fla.1985), plaintiff filed a five-count complaint against the defendant in connection with his account, alleging one federal securities claim (Count I) and multiple Florida statutory and common law claims (Counts II through IV).[1] In accordance with the customer agreement and the Federal Arbitration Act, Hutton moved for an order compelling arbitration on the state law claims. Because Hutton assumed that under Wilko v. Swan, 346 U.S. 427, 74 S. Ct. 182, 98 L. Ed. 168 (1953), the federal claim for violation of Section 10(b) of the Securities Exchange Act of 1934 was not subject to the arbitration provision of the contract and could be resolved only in a federal forum, it did not move to compel arbitration on that count.[2]
In Brown, the question of waiver was raised, and in Brown there had been some pre-trial discovery. The court commented on the waiver question, as follows:
610 F. Supp. at 79.
In view of the fact that in this case over two years had elapsed before Hutton invoked the arbitration clause, and in view of the fact that extensive preparation was being made to try the claims sought to be arbitrated, it would appear that, as a matter of law, there was a waiver, but when the particular facts of this case are analyzed, it appears that McKinney's claims did not become arbitrable until Hutton entered into a settlement agreement of the Lanes' claim, and that Hutton did not substantially invoke the litigation process with respect to the claims after that time.
As initially framed by the plaintiffs in January 1984, the Lane action contained both nonarbitrable claims (those involving the plaintiffs, with whom neither Hutton nor McKinney had an arbitration agreement) and arbitrable claims (those involving Hutton and McKinney). Because the arbitrable claims were "inextricably intertwined" with the nonarbitrable claims, arbitration was not available to Hutton. Sibley v. Tandy Corp., 543 F.2d 540, 543 (5th Cir.1976), cert. denied, 434 U.S. 824, 98 S. Ct. 71, 54 L. Ed. 2d 82 (1977); Sawyer v. Raymond, James & Associates, Inc., 542 F.2d 791, 792-93 (5th Cir.1981); Belke v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 693 F.2d 1023, 1026 (11th Cir.1982); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1172 (11th Cir.1982).
In March 1985, the United States Supreme Court rendered an opinion in which it rejected the so-called intertwining doctrine that had theretofore been followed by the Fifth and Eleventh Circuits. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S. Ct. 1238, 84 L. Ed. 2d 158 (1985). The Court held that the Federal Arbitration Act (9 U.S.C. §§ 1-14) requires arbitration of arbitrable claims even where such claims are intertwined with nonarbitrable ones.
This Court specifically followed the principle of the Dean Witter case in Ex parte Costa & Head, supra.
Even though a significant time period elapsed after McKinney first filed its cross-claim against Hutton, and even though there was significant pre-trial discovery made, we cannot find that the trial court erred in finding that Hutton did not waive its rights, because of (1) the strong federal policy that favors arbitration, and (2) the failure of McKinney to show prejudice because of the delay.
The trial judge could have found that it was not until May 23, 1986, when the Lanes' nonarbitrable claims against Hutton and McKinney were dismissed with prejudice, that Hutton's right to arbitration crystalized. Indeed, the trial judge concluded that recognition of the potentially harsh consequences of collateral estoppel, or issue preclusion, would have compelled the court to deny a demand for arbitration made by Hutton prior to the May 23, 1986, dismissal of the Lanes' claims:
"* * *
See Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1360 (11th Cir. 1986) ("[w]hen an arbitration proceeding affords basic elements of adjudicatory procedure, such as an opportunity for presentation of evidence, the determination of issues in an arbitration proceeding should generally be treated as conclusive in subsequent proceedings, just as determinations of a court would be treated"); Belke v. Merrill Lynch, Pierce, Fenner & Smith, supra, 693 F.2d at 1027 (because an arbitrator, in attempting to evaluate the arbitrable claims, would have been "`impelled to review the same facts'" presented to the court on the nonarbitrable claims, "a motion to compel arbitration at the outset of this litigation, prior to dismissal of the ... [nonarbitrable] claims, would have been futile").
The trial judge was also authorized to find that from May 23, 1986, until September 5, 1986, the date on which Hutton moved to compel arbitration, neither Hutton nor McKinney substantially invoked the litigation process, and that the expiration of this time did not constitute a wavier of Hutton's right to arbitration.
Furthermore, the trial judge was authorized to find from the evidence before him that McKinney had not been prejudiced by Hutton's demand for arbitration, and to conclude that McKinney failed to satisfy the second prong of the two-pronged waiver test set forth in Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 494 So. 2d 1. In other words, the trial court was authorized to find that Hutton's limited discovery in regard to McKinney was taken primarily for the purpose of defending against the Lanes' nonarbitrable claims, and was taken in Mobile, at little or no expense to McKinney. The record shows that McKinney never noticed or took a single deposition in defense of the Lanes' claims or in furtherance of his cross-claim against Hutton. Cf. E.C. Ernst, Inc. v. Manhattan Construction Co., 559 F.2d 268, 269 (5th Cir.1977) (per curiam) (holding that defendant had waived its right to arbitration where it engaged the plaintiff in more than three years' worth of pre-trial proceedings, which culminated in a 40-day bench trial), cited by McKinney in his application for rehearing, Exhibit 1, at 23-24 and 27-28. (See also the trial court and initial appellate court opinions in E.C. Ernst, Inc., reported at 387 F. Supp. 1001 (S.D.Ala.1974), and 551 F.2d 1026 (5th Cir. 1977), respectively.)
With respect to Hutton's discovery as to the plaintiffs and various third-party defendants and non-parties, McKinney was in no way involved. While he declined to attend virtually all the depositions, he did, of course, benefit from them in preparing his defense to the Lanes' claims. Ultimately, as a result, in part, of these discovery efforts, Hutton settled the $20 million Lane lawsuit and secured dismissals of the plaintiffs' claims against both itself and McKinneyat no cost to McKinney.
It has been decided by the New York Stock Exchange that the arbitration proceeding demanded by Hutton will be held in New Orleans, a neighboring city of Mobile. (Hutton Appendix, Exhibit L.) McKinney will thus be able to easily drive to and from the arbitration. We believe the evidence supports the trial court's determination that McKinney will not be prejudiced by having to present his claim to a New York Stock Exchange arbitration panel assembled in New Orleans.
Finally, as Judge Johnstone correctly noted, McKinney has undertaken no case *704 preparation that he would not have undertaken for the arbitration proceeding. The judge concluded that McKinney had failed to demonstrate any "practical prejudice" that he had suffered as a result of Hutton's arbitration demand:
Indeed, McKinney virtually conceded that his modest litigation expenses in this case would have been incurred independently of his cross-claim against Hutton:
Pursuant to this Court's two-pronged waiver test, failure to satisfy either part of the test mandates a finding that the right to arbitration has not been waived. Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 494 So. 2d at 3 ("`[e]ven if the Court assumes that there was invocation of the litigation process by the defendants, a finding of waiver cannot be made absent a showing of prejudice to the party opposing arbitration'"). We hold, therefore, that McKinney has failed to satisfy both parts of the test. Accordingly, his claim of waiver must be rejected.
After reviewing the record in this case, we are convinced that the trial court correctly applied the federal law of arbitration to the facts of this case, and we conclude that petitioner McKinney has not shown that the trial judge abused his discretion in determining that the dispute between Hutton and McKinney was subject to arbitration and that Hutton had not waived its right to compel arbitration. Based on the foregoing, therefore, McKinney's petition for writ of mandamus is due to be, and it hereby is, denied.
APPLICATION FOR REHEARING GRANTED; PETITION FOR WRIT OF MANDAMUS DENIED.
BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and ALMON, J., concur in the result.
JONES, SHORES and STEAGALL, JJ., dissent.
HOUSTON, J., not sitting.
[1] Count I alleged Hutton's violation of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder, 17 C.F.R. 240-10b-5. Counts II, III, IV and V allege fraudulent misrepresentation, violations of Section 517.211 and 517.301, Florida Statutes, and breach of fiduciary duty, respectively.
[2] In view of the holding in Shearson/American Express, Inc. v. McMahon, Hutton's assumption in that case may have been inaccurate. | August 21, 1987 |
71c6f901-b503-418e-b9f3-7970fbb27914 | Atlanta Auto Auction v. G & G Auto Sales, Inc. | 512 So. 2d 1334 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1334 (1987)
ATLANTA AUTO AUCTION, INC.
v.
G & G AUTO SALES, INC., and James R. Garner.
86-3.
Supreme Court of Alabama.
July 31, 1987.
Gerald R. Paulk of Livingston, Porter & Paulk, Scottsboro, for appellant.
H.R. Campbell, Scottsboro, for appellees.
HOUSTON, Justice.
This is an appeal by permission[1] by third-party defendant Atlanta Auto Auction, Inc. ("Atlanta Auction"), from the trial court's order denying Atlanta Auction's motion to dismiss James R. Garner's third-party complaint for lack of in personam jurisdiction. We affirm.
The sole issue in this case is whether Atlanta Auction had sufficient contacts with Alabama that, under the circumstances, it is fair and reasonable to require it to come to this state to defend this action. Rule 4.2(a)(2)(I), Ala.R.Civ.P.
The pertinent facts are as follows: Atlanta Auction is a Delaware Corporation, authorized to do business in the State of Georgia, with a single place of business located in Red Oak, Georgia. Atlanta Auction provides wholesale automobile auction services for automobile dealers, by providing an opportunity for automobile dealers to sell cars unsuitable for their business purposes and to purchase cars that will appeal to their customers. Third-party plaintiff James R. Garner, a retail dealer for G & G Auto Sales, Inc., purchased a 1980 Buick Skylark automobile from Randy Miller, d/b/a Miller's Auto Sales, through the services of Atlanta Auction. Garner was a resident of Scottsboro, Alabama, at the time of the sale and paid for the automobile with his company's check drawn on a Scottsboro bank. In return he was issued an invoice for the automobile by Atlanta Auction, with his Scottsboro address on its invoice. In January 1984, Edward Knight, the original plaintiff in this case, purchased the 1980 Buick Skylark from G & G Auto Sales, Inc. Thereafter, Knight filed a complaint against G & G Auto Sales, Inc., and Garner, for fraud, breach of warranty, and negligence arising out of the sale of the subject automobile by G & G and Garner to Knight. In response, Garner filed a third-party complaint against Miller and Atlanta Auction. Atlanta Auction filed a motion to dismiss Garner's third-party complaint on the grounds *1335 that the Jackson County, Alabama, Circuit Court lacked in personam jurisdiction.
In an affidavit filed in this cause, Garner stated that he had purchased numerous automobiles from Atlanta Auction prior to his purchase of the Buick Skylark and that at the time of each purchase Atlanta Auction knew that he was a resident of Alabama and that he and the company he worked for had their principal places of business in Jackson County, Alabama. Garner further stated that he regularly received brochures from Atlanta Auction regarding special sales and events to be held by it in the State of Georgia and had received other solicitations to buy and sell automobiles, through Atlanta Auction, periodically for many years. Garner was personally aware that other automobile dealers in the area of Alabama in which he lived also received solicitations for their business from Atlanta Auction.
These facts were before the trial court when it denied Atlanta Auction's motion to dismiss.
Atlanta Auction asserts that it is not qualified to do business in Alabama, that it does not have a personal representative in Alabama, and that it has never sent a representative to Alabama for any purpose pertaining to Garner and/or G & G Auto Sales, Inc.; therefore, it argues that the trial court erred in denying its motion to dismiss for lack of in personam jurisdiction. We disagree.
Dillon Equities v. Palmer & Cay, Inc., 501 So. 2d 459, 461 (Ala.1986).
Rule 4.2(a), Ala.R.Civ.P., provides in pertinent part:
It is uncontested that Atlanta Auction actively solicited Garner's business and through the mail services advertised its sales to be held in Georgia. It is also uncontested that Garner had purchased numerous automobiles from Atlanta Auction and transported them to Alabama to ultimately sell to his customers. Furthermore, at all such times, Atlanta Auction knew that both Garner and the company he worked for had their principal places of *1336 business in Scottsboro, Alabama. Based on the foregoing facts, we find that Atlanta Auction engaged in a "continuous and systematic" course of conduct in Alabama, albeit through mail services, that will support a reasonable exercise of jurisdiction by the courts of Alabama. See Ex parte Newco Mfg. Co., 481 So. 2d 867 (Ala.1985); Shrout v. Thorsen, 470 So. 2d 1222 (Ala. 1985); First National Bank of Pulaski, Tenn. v. Thomas, 453 So. 2d 1313 (Ala. 1984).
Similarly, in Garrett v. Key Ford, Inc., 403 So. 2d 923 (Ala.Civ.App.1981), the Court of Civil Appeals wrote:
Atlanta Auction "purposefully directed" its merchandising efforts toward the residents and businesses of another state. By so doing, Atlanta Auction "purposefully availed" itself of the privilege of making sales to, and profits from, Alabama residents through a continuous and systematic course of merchandising. For the privilege of conducting such activities, Atlanta Auction must bear the burden commensurate with the benefits received from its sales in Alabama. Ex parte Newco Mfg. Co., supra; Garrett, supra.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 2184, 85 L. Ed. 2d 528 (1985).
For the foregoing reasons, it is not unfair or unreasonable to require Atlanta Auction to come to Alabama and defend the present cause of action. Atlanta Auction's merchandising efforts provide sufficient contacts to support the denial of its motion to dismiss. The order of the trial court is affirmed.
AFFIRMED.
MADDOX, ALMON, BEATTY and ADAMS, JJ., concur.
[1] See Rule 5, Ala.R.App.P. | July 31, 1987 |
0dc9e5b0-e87a-438f-960f-6a549c46fdd2 | Whitmore v. Burge | 512 So. 2d 1320 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1320 (1987)
Sandra F. WHITMORE
v.
Herman Stanley BURGE.
85-1370.
Supreme Court of Alabama.
July 31, 1987.
*1321 Jon B. Terry of Bains and Terry, Bessemer, for appellant.
Jackie M. McDougal, Bessemer, for appellee.
BEATTY, Justice.
Appeal by plaintiff, Sandra F. Whitmore, from a judgment for defendant, Herman Stanley Burge, based upon a jury verdict in plaintiff's action against defendant arising out of an intersection collision between their automobiles.
Plaintiff's complaint alleged negligence and wantonness and prayed for damages for personal injuries and property damage. The defendant's answer denied either negligence or wanton conduct, and alleged contributory negligence.
On trial, each party moved for a directed verdict at the close of plaintiff's evidence. These motions were denied. At the close of the defendant's evidence, each party again moved for a directed verdict, and, again, each motion was denied. Additionally, after considering arguments of counsel, the trial court dismissed plaintiff's count alleging wanton conduct, and submitted the case to the jury upon the theories of negligence and contributory negligence. Ultimately, the jury returned a verdict for the defendant. Plaintiff's post-trial motions for a new trial or JNOV and to amend or *1322 alter the verdict were denied, and this appeal followed.
On appeal, plaintiff insists that the trial court erred in refusing to grant her motions for a directed verdict and for JNOV, that it erred in refusing to submit to the jury the issue of wantonness, and that it also erred in admitting into evidence certain testimony of defendant's wife referable to a posed photograph.
The facts of the case are undisputed. According to the plaintiff, she was traveling east on Warrior River Road within the City of Hueytown, approaching the intersection of High School Road and Cherry Avenue. She had a cup of coffee in one hand and was driving with the other. Travelling between 35 and 40 m.p.h., in a zone with a speed limit she knew to be 35 m.p.h., she could see the front of defendant's vehicle sitting in the intersection for a distance of one-quarter of a mile. At the time in question, the intersection was controlled by an improperly functioning traffic signal that was flashing "caution [yellow]" in plaintiff's direction and "stop [red]" in the direction of defendant's vehicle, which was stopped at the intersection. According to plaintiff:
The defendant described his movements at the time and place in question as follows:
Burge testified that his car had reached a speed of 10 to 12 m.p.h. when the collision occurred. He did not see the plaintiff coming, and did not look in her direction after he entered the intersection.
An investigating officer, Richard Waldron, testified that the accident occurred "more or less in the middle of the intersection on High School Road and Cherry Avenue, but on the eastbound lane of Warrior River Road." Waldron testified to the presence of several signs and a utility pole that could obstruct the view of one in the position of defendant: "If you're sitting back from the intersectionI'll say the intersection is the line that comes across hereit forms a square. And if you're sitting back away from the intersection, they could." He added that one could see both ways by pulling up to the point of the intersection. Waldron also testified that he was acquainted with defendant Burge, and that Burge had trouble seeing "a little bit." He based his conclusion on an occasion five years before in Mr. Burge's business when Burge told him "he couldn't see too good close up."
An eyewitness to the accident, Jimmy Hayes, testified that he saw Mr. Burge "sitting at the red light," and then saw that Burge "approached out slowly and then approximately about halfway across the lane, he speeded up." According to Hayes, both vehicles entered the intersection at the same time. He added:
Hayes testified to observing plaintiff's automobile approaching the intersection at from 35 to 45 m.p.h; his best estimate was 45 m.p.h. He also saw Burge before he pulled out in the intersection:
Plaintiff contends that defendant abandoned his plea of contributory negligence by acknowledging through the following testimony that plaintiff had the right of way:
Contrary to plaintiff's argument, it was plaintiff's counsel's question, not defendant's answer, that suggested who would have had the right-of-way at the time. Defendant Burge did not answer the question *1325 dealing with the right-of-way. His answer to the next question was, at least, unresponsive.
Plaintiff also contends that the following testimony of Burge was an "admission" that plaintiff was not at fault:
We respectfully suggest that this postulation was simply an assumption of hypothetical circumstances, and consideration of it along with defendant's other testimony does not lead to the reasonable conclusion that defendant had abandoned his defense. At most, it was only other testimony to be considered by the triers of fact.
On motion for a directed verdict, the entire evidence must be viewed in a light favorable to the opponent, and when a reasonable inference may be drawn adverse to the proponent, a directed verdict motion is properly refused. Hickox v. Vester Morgan, Inc., 439 So. 2d 95 (Ala.1983). In a civil case, a jury question is presented when any reasonable inference from the evidence supports the non-moving party. Draughon v. General Finance Credit Corp., 362 So. 2d 880 (Ala.1978).
The gist of plaintiff's claim against the defendant was that the defendant negligently or wantonly entered the intersection, in violation of the rules of the road,[1] crossed into her lane of travel, and struck her automobile. Insofar as her negligence claim is concerned, under the defendant's defense of contributory negligence, she maintains that she was free from any negligence that proximately contributed to the accident. But it is shown that she was steering with one hand, travelling between 35 and 45 m.p.h., had observed the defendant's vehicle at the intersection from a quarter of a mile away, that her entrance to the intersection was controlled by a flashing "caution" signal, that she did not sound her car horn, did not stop even though she was concerned that defendant's vehicle was going on through the intersection, and, in fact, speeded up instead of attempting to stop. This evidence, we respectfully observe, made a jury question on the issue of contributory negligence. Indeed, the jury could have concluded from this evidence that, under the circumstances, even if Mr. Burge negligently entered the intersection, nevertheless, a reasonable person in plaintiff's position would have averted the apparent danger by some warning *1326 or appropriate slackening of speed to avoid a collision. Williams v. Roche Undertaking Co., 255 Ala. 56, 49 So. 2d 902 (1950). As stated in Cox v. Miller, 361 So. 2d 1044, 1048 (Ala.1978):
Accordingly, we find that the trial court did not err in refusing to grant a directed verdict or JNOV to plaintiff on the negligence count.
Did the trial court err in refusing to submit the issue of Burge's wantonness to the jury?
In Rosen v. Lawson, 281 Ala. 351, 356, 202 So. 2d 716, 720 (1967), wantonness is explained:
This principle was applied in Hommel v. Jackson-Atlantic, Inc., 438 F.2d 307 (5th Cir.1971). The facts of that case disclose that:
To the plaintiff's contention on appeal that the trial court erred in granting defendant's motion for a directed verdict on the issue of wantonness, the Court of Appeals responded:
Although that conclusion was not based upon the application of the scintilla rule, which is applicable in Alabama state courts, nevertheless the conclusion reached in that case, in regard to the requirements of wanton conduct, is equally applicable here. Burge here did not see plaintiff's car before the collision, and did not know or even suspect that his vehicle would collide with hers. To the contrary, Burge "waited *1327 and waited," looking to the right and to the left, observing while other cars behind him passed him into and across the intersection. He proceeded into the intersection, and plaintiff's vehicle also entered the intersection at the same time, when it was too late to avoid the collision.
In Griffin Lumber Co. v. Harper, 247 Ala. 616, 618, 25 So. 2d 505, 506 (1946), this Court explained:
Under the facts and circumstances here, we conclude that the trial court did not err in refusing to submit the issue of Burge's wanton conduct to the jury.
To the plaintiff's further argument that the verdict is contrary to the preponderance of the evidence, we conclude that it cannot be set aside for that reason. While there was evidence from which the jury might have concluded that plaintiff should prevail, there was also evidence supporting the jury's finding for the defendant. McGehee v. Frost, 268 Ala. 23, 104 So. 2d 905 (1958).
Finally, plaintiff contends that the trial court erred in allowing certain testimony from Cora R. Burge, the wife of the defendant, concerning a photograph taken by her and later admitted into evidence. She testified as follows:
Contrary to plaintiff's contention, Mrs. Burge's testimony was not hearsay. The position she took, indeed, was the one he told her he had taken. Thus, her testimony was only an explanation of her reason for taking that position in order to take the photograph, not testimony that what he told her was true. Thus, her description was admissible over the hearsay objection; C. Gamble, McElroy's Alabama Evidence, § 273.01 (3d ed. 1977); Cleary, McCormick on Evidence, § 246 (2d ed. 1972).
Let the judgment be affirmed.
AFFIRMED.
MADDOX, ALMON, ADAMS and HOUSTON, JJ., concur.
[1] Specially, plaintiff cites us to Code of 1975, §§ 32-5-34(a)(1) and 32-5-112(b). It suffices to state here that the trial court instructed the jury on each of these statutes, along with the following additional instructions:
"I will now charge you on the Alabama rules of the road. The Alabama rules of the road consist of a number of statutes enacted into law by your legislature regulating the flow of traffic upon the highways of this state. The violation of certain of these rules of the road by a person using the public highways is prima facie negligence only. This means that the violation of such a rule is presumed to be negligence, but such violation is not, under all circumstances, negligence. And it is a jury question whether such a violation in a particular case is negligence.
"Should you determine that the violation of such a statute is negligence, such negligence, in order to be actionable on the part of the plaintiff or a defense on the part of the defendant, must proximately cause or proximately contribute to the injuries complained of by the plaintiff.
"I will now read certain of these statutes to you. The fact that I read these statutes to you is no indication that any of these statutes have been violated or that such a violation is negligence or that any such violation proximately caused or proximately contributed to the injury complained of by the plaintiff. It is for you to decide whether or not the statutes are applicable and then whether or not they have been violated, and whether or not such a violation is negligence, and whether or not any such violation proximately caused or proximately contributed to the injury complained of by the plaintiff, depending on what you find the facts to be." | July 31, 1987 |
085c92ee-4ff8-4d15-bbec-9f063ac96c00 | WATER VIEW DEVELOPMENTS v. Eureka, Inc. | 512 So. 2d 916 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 916 (1987)
WATER VIEW DEVELOPMENTS, INC.
v.
EUREKA, INC.
86-630.
Supreme Court of Alabama.
July 31, 1987.
*917 Byron A. Lassiter of Shores & Booker, Fairhope, for appellant.
Robert A. Wills, Bay Minette, for appellee.
JONES, Justice.
This is an appeal from a summary judgment entered for the plaintiff, Eureka, Inc., in an action on a promissory note brought against Water View Developments, Inc.
Eureka filed its summons and complaint on August 5, 1986, and service was perfected on Water View Developments, Inc., on September 4, 1986. On September 3, 1986 (the day before Water View was served), Eureka filed its "motion for summary judgment based upon the pleadings and all affidavits on file in this cause."
Eureka's motion for summary judgment first came before the trial court on the regular motion docket on September 17, 1986 (two days before an appearance was made on behalf of Water View), and was continued. On September 23, 1986, Water View filed a request for production of documents. On September 30, 1986, Water View filed the counter-affidavit of Milton Andrews, which was to the effect that because of the poor maintenance of the corporate records of Water View during the presidency of Thomas Nonnemacher, it was necessary to have an accounting firm analyze those records for the transactions made during the time period under consideration in the litigation. Therefore, stated Andrews, until the accountant finished the research and analysis of the corporate records, "it cannot be stated with certainty that Water View Developments, Inc., either did or did not receive and use these funds."
On October 1, 1986, Eureka's motion for summary judgment again appeared on the regular motion docket and was again continued. On that same day, Water View filed interrogatories to Eureka. On November 5, 1986, and on December 3, 1986, the summary judgment motion was again continued. On December 12, 1986, Water View filed an answer and a motion to extend time, pursuant to Rule 56(f), A.R. Civ.P.
On December 17, 1986, with Water View's request for production and its interrogatories still outstanding, Eureka's motion for summary judgment was granted. We reverse.
*918 Eureka rests its argument in support of the trial court's summary judgment on two grounds: 1) The large number of continuances of its summary judgment motion; and 2) the failure of Water View to pursue its discovery by seeking sanctions against Eureka for its noncompliance. We are not impressed with either of these arguments.
As to the several continuances, we need only to observe that Eureka's motion for summary judgment was filed before service of process was perfected on Water View; and the first two continuances occurred within 30 days after service of the summons and complaint. The record fails to reveal any dilatory tactics on the part of Water View. Indeed, Water View's appearance, its request for production of documents, and its filing of interrogatories to Eureka all occurred within 30 days after service of process. Further, summary judgment was entered only 5 days after Water View filed its answer and Rule 56(f) motion to extend time.
Eureka's "rush to judgment" argument stresses the point that "a suit on a note" is the classic case for the operation of summary judgment procedures, thus preventing any undue delay in obtaining judgment. We do not disagree with this general, abstract proposition; but its application must not abridge the defendant's right to present a lawful and legitimate defense to the claim.
We note from the record that one Thomas G. Nonnemacher was the sole incorporator of Eureka and one of the three organizers and equal shareholders of Water View. It is Eureka's intertwining relation with Water View that is addressed in Water View's request for production and in its written interrogatories. At this point, neither the trial court nor this Court knows if Eureka's compliance with those discovery devices will yield anything by way of a cognizable defense to Eureka's claim. We hold, however, that summary judgment granted in face of Eureka's noncompliance is untimely. Noble v. McManus, 504 So. 2d 248 (Ala.1987).
As to Water View's failure to pursue sanctions against Eureka for its noncompliance, we can only observe that, under these circumstances, Eureka can not profit by its own dilatory tactics.
REVERSED AND REMANDED.
TORBERT, C.J., and ADAMS, HOUSTON and STEAGALL, JJ., concur. | July 31, 1987 |
89b48e10-8394-4ff1-8316-355d503c9c2a | Bogle v. Scheer | 512 So. 2d 1336 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1336 (1987)
John William BOGLE, Jr.
v.
Robert S. SCHEER, et al.
86-55.
Supreme Court of Alabama.
July 31, 1987.
*1337 J.L. Chestnut, Jr., of Chestnut, Sanders, Sanders, Turner & Williams, Selma, for appellant.
Ian F. Gaston of Gaston and Gaston, Mobile, for appellees Robert S. Scheer and Kenneth Hallford.
Hilliard R. Reddick, Jr., of Hardin & Hollis, Birmingham, for appellees John Reid and John Hendrix.
HOUSTON, Justice.
The plaintiff, John William Bogle, appeals from a summary judgment granted in favor of the defendants, Robert S. Scheer, John Reid, Kenneth Hallford, and John Hendrix, in this action to recover damages for an unlawful indictment, arrest, and prosecution. We affirm.
The plaintiff was formerly an employee of the Alabama Department of Public Safety. All of the defendants are employees of that department. This action arose out of the indictment, arrest, and prosecution of the plaintiff for possession of controlled substances.
The plaintiff filed a five-count complaint in the Circuit Court of Mobile County. However, on appeal he has argued only that a summary judgment was not proper on the conspiracy count (count four). Because issues not argued in brief are waived, Humane Soc. of Marshall County v. Adams, 439 So. 2d 150 (Ala. 1983), our review is limited to whether the summary judgment was proper on the conspiracy count.
The plaintiffs' complaint, in pertinent part, reads as follows:
The following affidavits were submitted in support of the defendants' motions for summary judgment:
Chris N. Galanos:
Kenneth Hallford:
"In my official capacity as a law enforcement officer I was contacted in Montgomery by the District Attorney of Mobile County concerning allegations of possible wrongdoing on the part of the Plaintiff in connection with his relation to *1339 Calvin Louis Chappelle. Upon receipt of that request, I relayed the information through my chain of command to the Director of the Department of Public Safety. Thereafter, an investigation was performed in cooperation with the District Attorney of Mobile County who, I am informed, presented the results of that investigation to a grand jury which in turn indicted the Plaintiff on various charges which are the basis of this lawsuit."
Robert S. Scheer:
John Hendrix:
John Reid:
A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981). Once the defendants made a prima facie showing that the plaintiff's allegations were unsubstantiated, the burden was on the plaintiff in this case to present at least a scintilla of evidence in support of each element of his cause of action. The plaintiff testified during his deposition that he had no evidence to support his allegation that John Reid and John Hendrix conspired against him. We have also carefully reviewed the remainder of the record and have found no evidence tending to show that any of the defendants combined to injure the plaintiff as he claims. See Sadie v. Martin, 468 So. 2d 162 (Ala.1985). Speculation and conclusory allegations are insufficient to create a genuine issue for trial. Arrington v. Working Woman's Home, 368 So. 2d 851 (Ala.1979); Fullman v. Graddick, 739 F.2d 553 (11th Cir.1984).
For the foregoing reasons the summary judgment granted in favor of the defendants is affirmed.
AFFIRMED.
MADDOX, ALMON, BEATTY and ADAMS, JJ., concur.
[1] We note that Galano's affidavit spells this name Louis Chapelle, while other affidavits use the spellings Lewis and Chappelle. | July 31, 1987 |
08faae07-d9fb-4d5c-909a-1aaab97b5f5f | Larrimore v. Hospital Corp. of America | 514 So. 2d 840 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 840 (1987)
Gene LARRIMORE
v.
HOSPITAL CORPORATION OF AMERICA, et al.
Aubrey Lee ANDERSON
v.
HOSPITAL CORPORATION OF AMERICA, et al.
Harry Timothy BLACK, et al.
v.
HOSPITAL CORPORATION OF AMERICA, et al.
Patricia LONG, et al.
v.
HOSPITAL CORPORATION OF AMERICA, et al.
85-1347 to 85-1350.
Supreme Court of Alabama.
July 24, 1987.
Rehearing Denied September 18, 1987.
*841 Richard Bounds and Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder, and Brown, Mobile, for appellants.
Edward O. Conerly of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, and Donald F. Pierce and Davis Carr, Mobile, for appellees Hosp. Corp. of America, Inc., HCA Management Co., Inc., Monroe County Hosp. Bd., and Flowers Hospital, Inc.
John N. Leach, Jr., and Champ Lyons, Jr., of Coale, Helmsing, Lyons & Sims, Mobile, for appellees Richmond C. McClintock, M.D., and J. Timothy Jones, M.D.
W. Boyd Reeves and D. Brent Baker of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee Dr. Edward F. McGraw.
JONES, Justice.
These appeals, from summary judgments made final pursuant to Rule 54(b), A.R.Civ.P., involve four consolidated, but unrelated, medical malpractice cases. All four cases name, inter alia, Hospital Corporation of America ("HCA") as a defendant. Two of the cases (Nos. 85-1347 and 85-1348) name, inter alia, HCA Management Company, Inc. ("HMC"), a wholly owned subsidiary of HCA, as a defendant.
Because HCA is the only defendant in each case that does business in Mobile (the alleged negligence having occurred elsewhere), venue in the Mobile Circuit Court is dependent upon appellants' defeating HCA's motion for summary judgment, Rule 82, A.R.Civ.P. Therefore, as a consequence of its order dismissing HCA in each case, the trial court granted the defendants' several motions for transfer of venue.
We affirm the judgments as to HCA in cases numbered 85-1347 (Larrimore), 85-1348 (Anderson), and 85-1350 (Long), and uphold the order of transfer in each of these cases. We reverse the judgment as to HCA in case number 85-1349 (Black), and thus instruct the trial court to set aside its order of transfer in that case. We reverse the summary judgments in favor of HMC in cases numbered 85-1347 (Larrimore) and 85-1348 (Anderson), without prejudice to the rights of HMC to reassert its motions for summary judgment before the trial court to which these cases are transferred.
Because these appeals are unusual and complicated (made so primarily because of consolidation), a brief recitation of certain background facts (dealing essentially with the procedural posture of each case) may facilitate an understanding of our approach in resolving the issues.
Three hospitals, located in south Alabama, are involved. Larrimore and Anderson are based on alleged tortious acts at Monroe County Hospital in Monroeville. Long is a wrongful death claim involving Flowers Hospital in Dothan. Both the Monroe County hospital and the Dothan hospital are managed by HMC. Black involves L.V. Stabler Memorial Hospital in Greenville. All of this hospital's stock is owned by HCA.
On June 1, 1983, Gene Larrimore was admitted to Monroe County Hospital. He was given a prescription drug known as Desyrel, which later caused him to develop priapism, a persistent, abnormal erection of the penis without sexual desire. Mr. Larrimore's condition required surgical intervention. He commenced this negligence action on December 13, 1984, in Mobile County Circuit Court against HCA, HMC, and Dr. J.T. Jones.
On February 12, 1983, Aubrey Lee Anderson was admitted to Monroe County Hospital's emergency room for treatment of influenza, accompanied by nausea, weakness, and vomiting. His attending physician prescribed intravenous fluids and then left the patient to get the fluids. While the physician was out of the room, Mr. Anderson fell or rolled off the examining table and sustained a fracture to his left clavicle. His negligence action was brought on April 18, 1984, in Mobile County Circuit Court against HCA, HMC, and the Monroe County Hospital Board.
On August 20, 1983, Christopher Eugene Long, 11, was admitted to Flowers Hospital *842 in Dothan to undergo surgery, based upon a presumptive diagnosis of appendicitis. The boy did poorly postoperatively and suffered cardiac arrest. He was resuscitated but sustained considerable brain damage and died on August 29. On December 22, 1983, a wrongful death action was brought in Mobile County Circuit Court by his estate against Flowers Hospital, HCA, and the surgeon, Dr. Richard McClintock. On December 24, 1983, Harry Timothy Black was admitted to L.V. Stabler Memorial Hospital in Greenville to have a pacemaker implanted. During this procedure, Mr. Black alleged, he suffered injury to the ulnar nerve in his right elbow and subsequently lost the use of his right arm. On December 19, 1984, he brought a negligence action in Mobile County Circuit Court against HCA and the surgeon, Dr. Edward F. McCraw.
After consolidation of the cases, the trial court entered its final order granting HCA's and HMC's motions for summary judgment and granting motions of all the defendants for transfer of venue, sending Larrimore and Anderson to Monroe County Circuit Court, Black to Butler County Circuit Court, and Long to Houston County Circuit Court.
The complexity of these appeals is manifested in the respective arguments of the parties and in the findings of the trial court. The appellees contend that control of the hospital employees who allegedly committed these negligent acts cannot be imputed to HCA and HMC via the theory of respondeat superior and cite the trial court's order, which states in relevant part:
The appellants' argument that employees of HMC and HCA had the right to control the hospital employees in each of these cases did not impress the trial court. It was not convinced that the appellants had sustained their burden of proof in establishing that the two corporations committed negligent acts or omissions in their roles as supervisors or overseers of the hospital employees.
Both the arguments of counsel and the trial court's findings tend to confuse the transfer-of-venue issue in two aspects: 1) They treat the question of the respective liabilities of HCA and HMC as a common factor for venue determination; and 2) they treat the determination of liability of all three hospitals as a common factor, even though Stabler Hospital is wholly owned by HCA and its own employee is the hospital administrator, while the remaining two hospitals are operated by HCA's wholly owned subsidiary corporation, HMC.
The appellants' burden of proof, however, was more aptly refined at oral argument by counsel for one of the non-hospital appellees:
For the purpose of testing the propriety of the trial court's granting of defendants' motions for change of venue, we have chosen to treat the only issue that is common to all four cases: whether HCA is entitled to summary judgment. Our resolution of this single issue requires a two-step inquiry: 1) Does the evidence show that HCA acceded to the rights (and thus assumed the legal duties) of the owners in operating the hospitals? and 2) Does the evidence present a triable issue of fact as to HCA's liability, under the theory of respondeat superior, for the negligence of the hospital employees?
To be sure, once the first inquiry is answered, the second inquiry is self-answering. That is to say, if we answer the first question (whether there is a triable issue of fact as to HCA's status as the employer of the alleged tort-feasor) in the negative, the second question (whether there is a triable issue of fact as to HCA's liability) is mooted. On the other hand, if we determine that the evidence makes out a triable issue of fact as to HCA's status as the employer, no further discussion is required to demonstrate that each of the plaintiffs has clearly met the requisite burden to withstand the defendants' motions for summary judgment on the liability issue.
As the above-quoted portion of the trial court's order amply demonstrates, the genuine issue of material fact being tested in each of these cases is not the tort-feasor status of the hospital employee or the physician, but the employer status of HCA. Stated otherwise, the single dispositive issue, then, is whether the evidence presents a triable issue of fact as to HCA's status as the principal (i.e., the hospital employer) of the hospital employee or agent (i.e., the alleged tort-feasor), as these terms are commonly understood in the application of the doctrine of vicarious liability.[1]
We begin our analysis by an overview of the facts in support of, and in opposition to, the defendants' motions for summary judgment as they relate to the employer status of HCA. Because we find there is a material distinction between the application of the "separate corporate entity" doctrine with regard to the two hospitals operated by HMC and the way these principles are to be applied to Stabler Hospital, in which HMC is not involved, we deem it appropriate to isolate the facts common to the HMC-managed hospitals from the facts applicable to HCA's operation of Stabler Hospital.[2]
HCA is an investor-owned corporation whose stock is traded on the New York Stock Exchange. At the time these causes of action arose (1983), HCA claimed revenues totalling almost $4 billion and net income of $243,218,000, according to its annual report. It owned all of the stock of the corporations that own Doctors Hospital and Knollwood Park Hospital in Mobile and *844 L.V. Stabler Memorial Hospital in Greenville.
HMC is a wholly owned subsidiary of HCA. It has management agreements with Monroe County Hospital in Monroeville and Flowers Hospital in Dothan. It is a Delaware corporation. On July 31, 1984, there were 15 officers of HCA. One of those officers also served as an officer of HMC. There were 18 directors of HCA. Of those directors, two served as directors of HMC. HMC is responsible, generally, for the day-to-day operations of the hospitals with which it has management agreements.
The management agreement entered into between Monroe County Hospital and HMC, for example, gave HMC the "authority and responsibility to conduct, supervise, and manage the day-to-day operation of the Hospital" and provided that "Subject to any different conditions imposed by the Board, HMC shall manage the Hospital in the same efficient manner as HCA manages hospitals solely owned by it."
All personnel decisions were vested in HMC, including "in-service training, attendance at seminars or conferences, staffing schedules, and job and position descriptions with respect to all employees of the Hospital."
HCA West is one of five major corporate bodies for which HCA serves as the holding or parent company. HCA West has six divisions, and one of these is the New Orleans division, which oversees both managed and owned HCA facilities in Alabama.
Twyman Lee Towery, vice president of the New Orleans division of HCA West, Inc., which encompasses Alabama, Louisiana, and Mississippi, testified in a deposition that he also served as vice president of Doctors Hospital of Mobile and Community Hospital of Andalusia. He identified the directors of the Doctors Hospital board, who also served as president of HCA West and vice presidents of operations and development for HCA.
The appellants insist that important rights of ownership, vested in HCA, included the right to guarantee management agreements, to institute its own retirement program, to hire and fire employees, to install its own management team, to centralize financial operationsincluding bookkeeping, contracting, and cash managementand to bill hospitals for the services, expenses, and fringe benefits of the management teams it supplied through HMC. Further, the vice president of the New Orleans division of HCA West, Mr. Towery, described himself as a "focal point," a "liaison," and a "conduit" between the corporation that managed the hospitals (HMC) and HCA.
While the evidence, when viewed most favorably to the plaintiffs' cases, establishes a close-knit relationship among the HMC-operated hospitals, their corporate managers, and HCA, we find that the summary judgment movants have met their burden of showing that there is no triable issue of material fact in the two cases involving Monroe County Hospital (Larrimore and Anderson) and in the one case involving Flowers Hospital (Long). We find no evidence from which the factfinder could reasonably infer that HCA controlled, or retained the right to control, the day-to-day operations of the HMC-operated hospitals.
Indeed, the case of Ex Parte Baker, 432 So. 2d 1281 (Ala.1983), for all practical purposes, presented the same issue, based on substantially the same facts as those here presented with respect to the HMC-operated hospitals. As this Court held in Baker, we now hold, as to Larrimore, Anderson, and Long, that the evidence is insufficient to present a triable issue of fact with regard to HCA's status as employer of the alleged tort-feasors.
The evidence is without dispute that the business affairs of HMC, as the manager and operator of the two subject hospitals, were conducted in a manner appropriate to its separate purposes and functions, without the degree of dominion and control required for it to be regarded as the "alter ego," or a "mere instrumentality," of its corporate parent, HCA. In addition to the cases cited in Baker, see Duff v. Southern Railway Co., 496 So. 2d 760 (Ala.1986), for *845 an excellent discussion of the parent/subsidiary corporation dichotomy. See, also, Barrett v. Odom, May & DeBuys, 453 So. 2d 729 (Ala. 1984).
A detailed recital of every fact developed by the evidence with regard to HCA's relationship to Stabler Hospital is unnecessary. Because we have already recited the material facts with regard to the HMC-operated hospitals' relationship to HCA, it will suffice here to state only a few facts that stand in contrast to those stated above. At the outset, we recognize HCA's contention that, when it purchased 100 percent of Stabler's stock, it did not substitute itself for Stabler's role as the entity operating the hospital. In other words, HCA contends that Stabler occupied the same corporate status as operator of the Greenville hospital as HMC occupied with respect to the Monroeville and Dothan hospitals. In many respects, we agree; but the evidence discloses certain material differences.
As alluded to earlier, upon acquiring ownership of Stabler, HCA installed its own employee as the hospital's administrator. Stabler's president, secretary, and assistant secretary were officers of HCA. The record contains ample evidence from which the factfinder could reasonably infer that those supervisory employees directly responsible for the day-to-day operation of Stabler were officers or employees of HCA. From a functional point of view, Stabler Hospital's separate management activities relate almost entirely to corporate formalities, in sharp contrast to the evidence of HMC's day-to-day management activities on behalf of Monroe County Hospital and Flowers Hospital.
We emphasize that we are not holding, as a matter of law, that the evidence establishes that HCA was the employer of the alleged tort-feasor in the Stabler Hospital case. Rather, we find from the totality of the evidence that a triable issue of fact exists with respect to HCA's status as the employer and with respect to the merits of the claim based on its alleged liability, so as to preclude disposition of the Black claim by way of summary judgment.
AFFIRMED AS TO HCA IN CASES NUMBERED 85-1347, 85-1348, AND 85-1350; REVERSED AND REMANDED AS TO HCA IN CASE NUMBER 85-1349, WITH INSTRUCTIONS; REVERSED AND REMANDED AS TO HMC IN CASES NUMBERED 85-1347 AND 85-1348.
MADDOX, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] For an excellent discussion of the "respondeat superior" doctrine and its application, see Old Southern Life Insurance Co. v. McConnell, 52 Ala.App. 589, 594, 296 So. 2d 183, 186 (1974), cited in National States Insurance Co. v. Jones, 393 So. 2d 1361, 1367 (Ala.1980), and Autrey v. Blue Cross & Blue Shield of Alabama, 481 So. 2d 345, 347 (Ala.1985).
[2] We caution the reader that our references to "the two hospitals operated by HMC" and "HMC-operated hospitals" are to be understood throughout the opinion as terms of identity merely. We have not overlooked HMC's argument that the local hospital corporationand not HMCis the employer in the Monroe County Hospital cases (Larrimore and Anderson). Indeed, the Long suit asserts a claim against Flowers Hospital and not against HMC. These issues are not addressed in this opinion. | July 24, 1987 |
ae54a886-7f9c-4917-8023-5dc4550b4cc9 | Massey v. Weeks Realty Co., Inc. | 511 So. 2d 171 | N/A | Alabama | Alabama Supreme Court | 511 So. 2d 171 (1987)
Joseph Earl MASSEY
v.
WEEKS REALTY COMPANY, INC., and Maxine Goodson.
85-1483.
Supreme Court of Alabama.
July 10, 1987.
*172 Steven K. Brackin of Lewis & Brackin, Dothan, and Alfred J. Danner of Hughes & Danner, Geneva, for appellant.
M. Dale Marsh of Cassady, Fuller & Marsh, Enterprise, for appellees.
HOUSTON, Justice.
Joseph Earl Massey sued Weeks Realty Company, Inc., and Maxine Goodson, who was characterized in the complaint as "a saleswoman for" Weeks Realty Company who "at all times pertinent hereto was acting within the line and scope of her employment with" Weeks, for misrepresentation in the sale of used residential real estate. The trial court granted the defendants' motion for summary judgment. Massey appeals. We affirm.
Massey purchased a repossessed Farmers Home Administration (FHA) house through Weeks and Ms. Goodson. Ms. Goodson, independently and not as an agent of Weeks Realty, had contracted with FHA to refurbish the house in accordance with directions from FHA. After the house had been refurbished, Massey's brother-in-law submitted a bid to purchase the house. He did not meet the FHA qualifications, and Massey submitted a bid to purchase the house for $25,000 and signed a form in which he agreed to purchase the house "as is, in its present condition." This was explained to Massey in detail before he purchased the house. The Weeks Realty purchase agreement form that Massey signed contained the following provision: "The agents do not warrant or guarantee the condition of this property or any of the equipment therein." He was given a copy of this agreement at the time he signed it.
The representations, which are the basis for this action, were allegedly made by Ms. Goodson before either of the above documents was signed. The alleged representations were as follows:
Massey personally inspected the house several times prior to purchasing it. He *173 did not ask Ms. Goodson if the house had been checked or treated for termites. She did not tell him specifically that it had been checked or treated for termites. Massey could have hired someone to check the house for termites prior to purchasing it.
Massey alleged that several months after he purchased the house "burrows started coming out on the inside wall." He says he later learned that the front of the house was infested with termites and that extensive damage had been done to the front wall and front columns by termites.
There is no evidence that Ms. Goodson did not refurbish the house in accordance with her agreement with FHA.
In Ray v. Montgomery, 399 So. 2d 230 (Ala.1980), this Court affirmed a summary judgment in favor of former owners of a house, who were sued by the purchasers of the house for failing to disclose to them that there had been termite damage in the house. We held at 233:
Massey bought the house "as is." He said he understood that if he "found that the pipes were inefficient or the roof had a leak in it or such as this, that that was my obligation to replace those type things." Also, with reference to the representations allegedly made by Ms. Goodson, the real estate contract, which was signed by Massey after the representations were made, expressly provided: "The agents do not warrant or guarantee the condition of this property or any of the equipment therein."
The evidence is undisputed that Massey had an opportunity to inspect this house. It does not appear that Massey was unlearned or in any way afflicted with physical or mental disability.
One of the four elements of actionable fraud is justifiable reliance. Lucky Manufacturing Co. v. Activation, Inc., 406 So. 2d 900 (Ala.1981). On the basis of Marshall v. Crocker, 387 So. 2d 176 (Ala.1980), and Holman v. Joe Steele Realty, Inc., 485 So. 2d 1142 (Ala.1986), under the undisputed facts in this case, as a matter of law, Massey did not have the right to rely on the oral representations of Ms. Goodson made prior to the execution by Massey of the form containing the "as is" provision and the purchase agreement that provided that the realtor did not warrant or guarantee the condition of the property.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur. | July 10, 1987 |
e04ef9aa-937d-4cde-a04f-e989448413f2 | Perry v. MacOn County Greyhound Park, Inc. | 514 So. 2d 1280 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1280 (1987)
Al PERRY
v.
MACON COUNTY GREYHOUND PARK, INC., and Pari-Mutuel Management, Inc.
86-659.
Supreme Court of Alabama.
September 4, 1987.
*1281 Lee Sims of Oliver & Sims, Alexander City, Jock Smith, Tuskegee, for plaintiff-appellant.
Wade K. Wright and James W. Garrett, Jr., of Rushton, Stakely, Johnston & Garrett, Montgomery, for defendants-appellees.
MADDOX, Justice.
This appeal is from a directed verdict granted in favor of the defendants, Macon County Greyhound Park and Pari-Mutuel Management in a slip and fall case.
On November 16, 1984, the plaintiff slipped and fell while attending the dog races at the Macon County Greyhound Park. Plaintiff contends that he slipped because of a wet area on the concrete floor and because the area was not well lighted. The evidence shows that a bell rings and the lights are dimmed immediately preceding a race in order to facilitate viewing and to avoid distracting the dogs, and also to signal that no more wagers can be made on that particular race.
The only evidence as to the brightness of the lights or the luminosity of the area was the testimony of Milton E. McGregor, president of Macon County Greyhound Park, Inc., who stated that when the lights were dimmed there was sufficient light to see something even as small as a dime on the floor.
There is no dispute that the plaintiff was an invitee and lawfully on the premises of the defendant when he fell. As an invitee on the premises, the plaintiff is owed by the defendants a duty to exercise ordinary and reasonable care to keep the premises in a reasonably safe condition. Gray v. Mobile Greyhound Park Ltd., 370 So. 2d 1384 (Ala.1979) (quoting, Tice v. Tice, 361 So. 2d 1051, 1052 (Ala. 1978)). The owner of the premises, however, is not an insurer of the safety of his invitees, and the fact that the plaintiff fell and was injured raises no presumption of negligence. Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So. 2d 586, cert. den., 287 Ala. 729, 255 So. 2d 592 (1971); Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So. 2d 177 (1958). The plaintiff has the burden of proving that the defendant breached its duty to exercise ordinary and reasonable care and failed to keep its premises in a reasonably good condition. The law does not place upon the defendant the duty to take extraordinary care to keep a floor completely dry or free from debris. Wal-Mart Stores, Inc. v. White, 476 So. 2d 614 (Ala.1985); Terrell v. Warehouse Groceries, 364 So. 2d 675 (Ala.1978). As stated in Mobile Greyhound Park, Ltd., a racetrack is under no duty to keep a floor completely dry or completely free of litter or *1282 other obstructions. 370 So. 2d at 1388-89.
As the Court stated in that case:
370 So. 2d at 1388-89. The Court further stated that a storekeeper is under no duty to keep his floor completely dry, and, in a like manner the owners and operators of public amusement facilities are not under a duty to keep their floors completely clean. Id.
The plaintiff's burden of proof in a premises liability case is to prove that the defendant knew there was some defect in the condition of the premises, which can be proved in one of two ways. The first is by showing that the defendant had actual knowledge of the defect and the second is by showing the defendant had implied knowledge of it.
The alleged defect in this case was a "wet substance" that was on the floor some 15 feet in front of the concession stand. There was no evidence presented to the trial court which in any way indicated that the defendants or their agents had any actual knowledge of the presence of this "wet substance" on the floor. The plaintiff did not present any testimony of actual knowledge; therefore, the plaintiff failed to prove actual knowledge.
In order to prove the defendant had implied knowledge, the plaintiff must present evidence that the foreign substance, regardless of its nature, had been on the floor for a sufficient period of time to raise the presumption that the defendant had notice of its presence. See, e.g., May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So. 2d 590 (1968) (holding that the presence of a bean that was green, hard and fresh did not support a reasonable inference as to the length of time the bean had been on the floor); Winn-Dixie Store No. 1501 v. Brown, 394 So. 2d 49 (Ala.Civ.App.1981) (in which the court held that the plaintiff offered no evidence that the defendant had actual notice of the foreign substance on the floor, or that the defendant had implied knowledge because it was the plaintiff's own testimony that the vegetable matter on the floor "appeared fresh and green").
In Bonds v. Brown, 368 So. 2d 536 (Ala. 1979), a case which is very similar to the instant case, this Court affirmed the trial court's granting of a directed verdict because the plaintiff offered no evidence that the defendant had actual or implied knowledge of the condition she claimed existed on the premises and which she contended was the cause of her injury. In Bonds, the plaintiff alleged that she fell in the bathroom of a hospital because of the slippery conditions of the tile floor. The plaintiff maintained that the hospital breached its duty to exercise reasonable care to provide and maintain reasonably safe premises for her use as a patient. In holding that the trial court did not err in granting defendant's motion for directed verdict, the Court stated the following:
"`... So to prove negligence on the part of the defendant it is necessary to prove that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant, or that he had actual notice, or that he was delinquent in not discovering and removing it. In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in the maintenance of its floors....'
Bonds v. Brown, 368 So. 2d at 538.
In another recent case, Cash v. Winn-Dixie Montgomery, Inc., 418 So. 2d 874 (Ala.1982), this Court once again affirmed the trial court's granting of a directed verdict in favor of the defendant in very similar circumstances. In Cash, the plaintiff alleged that he had stepped on a can of food and fell. In affirming, we stated the following:
418 So. 2d at 876.
The Court stated, in Cash, that since there was no evidence presented by the plaintiff that indicated the can was "bent, mashed or mutilated" or had been on the floor for an inordinate length of time, then the jury could not impute constructive notice to the defendant. Therefore, the trial court did not err in directing a verdict in favor of the defendant.
In the instant case, plaintiff failed to prove any knowledge, either actual or implied, on the part of the defendants of the presence of the "wet substance."
The plaintiff, in an effort to avoid having to prove the defendant's knowledge of the liquid on the floor, argued to the trial court, and argues in his brief here, that the defendants were negligent in dimming the lights immediately prior to the start of a race.
Under the circumstances then existing, the evidence of the mere dimming of the lights prior to the beginning of a race was not sufficient evidence from which an inference could be drawn that the defendants negligently created a condition which proximately caused plaintiff's slip and fall.
Because the plaintiff failed to present any evidence that the defendants had notice of the floor's condition, the trial court properly directed a verdict against the plaintiff. We find no error and affirm the judgment appealed from.
AFFIRMED.
JONES, SHORES, BEATTY and HOUSTON, JJ., concur. | September 4, 1987 |
d8868085-0282-4465-acd2-5c2cc9dedf1d | Hearing Systems, Inc. v. Chandler | 512 So. 2d 84 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 84 (1987)
HEARING SYSTEMS, INC., and Montgomery Hearing Health Services, Inc.
v.
Herman B. CHANDLER.
85-413.
Supreme Court of Alabama.
July 24, 1987.
*85 Christopher Knight, Mobile, for appellants.
Herman D. Padgett, Mobile, for appellee.
BEATTY, Justice.
Appeal by the defendants, Hearing Systems, Inc., and Montgomery Hearing Health Services, Inc., from a judgment for the plaintiff, Herman B. Chandler, in the latter's action based upon allegations of fraud in the sale of hearing aids.[1] We reverse and remand.
Originally, Chandler sued Hearing Systems, Montgomery Hearing Health Services, and Dahlberg Hearing Services, seeking damages for breach of contract, fraud, and conversion in connection with his purchase of hearing aids. Prior to trial, however, Chandler settled his contract dispute with Dahlberg and proceeded against the present defendants on his conversion and fraud counts. In the ensuing trial, after appropriate motions, only the fraud counts were submitted to the jury; the jury turned a verdict for plaintiff in the amount of $21,780. The defendants' post-trial motions were denied, and they appealed. Chandler does not cross-appeal from the trial court's action removing the conversion count from the jury's consideration, nor does he argue it; hence, the only issue before us concerns the allegations of fraud.
The facts pertaining to that issue are, to a degree, convoluted. Apparently, Chandler, having read an advertisement in Reader's Digest, mailed a postcard containing an inquiry about a hearing aid. Thereafter, he was contacted by Don Abston, a hearing aid consultant employed by Hearing Systems, Inc. (d/b/a Metro Hearing Aid Center in Saraland). Abston took "imprints," or wax impressions, of Chandler's ears, and, thereafter, Chandler and Abston, on behalf of Hearing Systems, Inc., entered into a contract whereby Chandler purchased two hearing aids at a price of $1,780, tendering his bank check in payment. According to Chandler, this contract allowed him a full refund within 30 days if he was dissatisfied.
The representative, Don Abston, deposited Chandler's check in a bank account of Hearing Systems, Inc., and notified the owner of Hearing Systems, Inc., Mrs. Jane Guillot, of the sale. Abston then ordered the hearing aids from Dahlberg Hearing *86 Systems. Abston received his commission from the sale from Mrs. Guillot.
Abston delivered the hearing aids to Chandler. About ten days later, Chandler telephoned Abston to report his difficulty in turning the volume adjustment screw. Abston called upon Chandler to assist him in that process. He was assisted on this occasion by Max Guillot, husband of Jane Guillot and owner of Montgomery Hearing Health Services, Inc., who was acting as a consultant for Hearing Systems, Inc., at this time. Chandler was still dissatisfied, however, and advised Abston by letter of his desire for a refund. Abston called upon Chandler once more and, as a result of that meeting, Abston took another set of wax impressions in order to provide larger aids for Chandler. When these arrived, Abston went to Chandler's residence, accompanied by Max Guillot, and installed them. The price for this new set of hearing aids was $1,378, or $402 less than for the price of the first set of hearing aids. The parties, on January 17, 1984, entered into a new written contract on that basis. This contract provided for a right to cancel by giving notice within three business days. Chandler, however, maintained that Abston told him that he had 20 days within which to cancel. In any case, on February 10, 1984, Chandler wrote to Abston demanding a full refund of $1,780, and returning the second set of hearing aids. Abston communicated this information to Mrs. Jane Guillot, who informed Abston that she would handle the matter. As she later testified, Chandler was not refunded the $402 coverage resulting from the substitution of the second set of aids because he insisted upon a full refund, when, according to Mrs. Guillot, his complaint occurred after the expiration of his trial period. Additionally, Abston recommended to her a "wait and see" position while they applied the company policy of "keeping the customers happy."
By his amended complaint, Chandler alleged the following:
Code of 1975, § 6-5-101, defines "fraud":
As shown by the allegations of his complaint, plaintiff Chandler charged the defendants with willful and reckless misrepresentations made with intent to deceive. Thus, it was incumbent upon plaintiff to prove the elements of fraud against each: "(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." Bowman v. McElrath Poultry, Inc., 468 So. 2d 879 (Ala.1985).
It is also the law that, when the alleged representation relates to some future event, not only falsity, reliance, and damages must be proved, but also it must be proved that "at the time the statement or promise about the future was made, there was an actual fraudulent intent not to perform the act promised and an intent to deceive the plaintiff." Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76, 80-81 (Ala.1983).
The gist of the fraud claimed by plaintiff was that he did not get the $402 refund as promised and that his second set of hearing aids "would not perform properly and would not fit properly."
A cogent statement of the plaintiff's burden under these circumstances is found in Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515, 519 (Ala.1983):
*88 See also P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928 (Ala.1985).
Insofar as Abston's conduct and intent are concerned, there is no reasonable inference from the evidence that he knew that no money would be refunded to Chandler, even within the 20-day contractual period for cancellation advocated by Chandler. Additionally, no evidence exists suggesting that Abston knew that the aids would not fit or would not work properly. To the contrary, it is established by the evidence that Abston, and Guillot as well, sought to furnish Chandler with satisfactory hearing aids, making several visits to his residence in order to properly fit the aids, which in fact were properly fitted during these visits. The fitting process may have indeed been difficult and the hearing adjustments may have been cumbersome to Chandler, personally; however, the subsequent dissatisfaction with his contract did not constitute fraud. And, as stated in Purcell, supra:
Nothing in the evidence establishes a reasonable inference of fraudulent intent on Abston's part.
Regarding Montgomery Hearing Health Services, Inc., what we have stated concerning Abston's conduct as it related to Hearing Systems, Inc., applies equally to the conduct of Guillot. Furthermore, there was no evidence that, during the transaction in question, Guillot was acting in any capacity other than as a consultant for Hearing Systems, Inc.; thus his position vis-a-vis Chandler is to be considered similar to that of Abston. No evidence of any representations by him on behalf of Montgomery Hearing Health Services, Inc., was introduced. That defendant, moreover, received none of the proceeds of the sale to Chandler.
Accordingly, it was error to overrule the defendants' motion for judgment notwithstanding the verdict made on the ground that plaintiff had failed to prove a prima facie case of fraud. For that reason, the judgment must be, and it is, reversed, and the case remanded for an order by the trial court consistent with this opinion. It is so ordered.
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
JONES, J., dissents.
[1] The attorney for plaintiff has suggested the death of Mr. Chandler since this appeal was submitted and the opening of an estate in the probate court of Mobile County. He has also petitioned this Court to be allowed to withdraw as attorney. The petition is granted.
The attorney for the estate has petitioned this Court to substitute as plaintiff-appellee Gary Chandler, as executor of the estate of Herman B. Chandler, deceased. The petition is granted. Rule 43, A.R.App.P. Although invited to do so, the attorney for the estate has chosen not to file a supplemental brief.
The attorney for plaintiff, under Rule 10(f), has moved to supplement the record with five exhibits. These exhibits were, in fact, contained in the clerk's record. The motion is granted. | July 24, 1987 |
055d59a0-16f2-4422-9313-ae514777e2fd | Pennington v. Bigham | 512 So. 2d 1344 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1344 (1987)
Willis PENNINGTON
v.
Bobby BIGHAM, et al.
86-379.
Supreme Court of Alabama.
July 31, 1987.
J. Paul Whitehurst of Whitehurst & Whitehurst, Tuscaloosa, for appellant.
Jerry Hudson, Tuscaloosa, for appellees.
HOUSTON, Justice.
The plaintiff, Willis Pennington, appeals from a judgment in favor of the defendants, *1345 Bobby Bigham, Patricia Bigham Smith, individually and as administratrix of the estate of John Thomas Bigham, and John Thomas Bigham, a minor.[1] We reverse and remand.
The plaintiff filed suit against Bobby Bigham on February 9, 1983, in the Circuit Court of Tuscaloosa County. A default judgment was rendered against Bobby Bigham on March 21, 1983. The plaintiff filed a certificate of judgment in the Probate Court of Tuscaloosa County on May 16, 1983. On June 25, 1984, Bobby Bigham's father died. On July 5, 1984, Bobby Bigham executed a disclaimer of all interests in his father's estate. Letters of administration were granted to Patricia Bigham Smith on July 9, 1984. On July 26, 1984, the plaintiff had a garnishment issued to Patricia Bigham Smith as administratrix of the estate of John Thomas Bigham. She filed an answer denying that Bobby Bigham had a claim to any property of the estate. No trial was held on the garnishment. Thereafter, the plaintiff filed a declaratory judgment action against the defendants[2] alleging that the disclaimer executed by Bobby Bigham was a fraudulent conveyance and seeking an adjudication as to his right to collect his judgment from the property of the estate. The case was submitted to the trial court on stipulated facts, and it entered a judgment in favor of the defendants. Specifically, the trial court determined that Bobby Bigham had effectively disclaimed all interests in his father's estate and that the filing of the certificate of judgment in the probate court did not create a lien in favor of the plaintiff against any property of the estate. For the following reasons, we disagree.
As stated, this case was submitted to the trial court on stipulated facts. No testimony was taken; therefore, there is no presumption as to the correctness of the trial court's judgment. This Court sits in judgment on the evidence in the same manner as did the trial court. See cases collected at 2B Ala. Digest, Appeal & Error, key no. 1009(6) ("Where evidence was in writing") (1982).
Section 6-9-210, Code 1975, provides for the filing of a certificate of judgment in the probate court. Section 6-9-211, Code 1975, states:
When John Thomas Bigham died intestate on June 25, 1984, the legal title to a one-half interest in his real property vested eo instante in Bobby Bigham; however, it vested subject to the statutory power of the administratrix to take possession of it *1346 and obtain an order to have it sold for payment of the debts of his father's estate. § 43-2-370, Code 1975; § 43-2-442, Code 1975; Ex parte Stephens, 233 Ala. 167, 170 So. 771 (1936); Johnson v. Sandlin, 206 Ala. 53, 89 So. 81 (1921); Banks v. Speers, 97 Ala. 560, 11 So. 841 (1892); Nelson v. Murfee, 69 Ala. 598 (1881); Calhoun v. Fletcher, 63 Ala. 574 (1879). Because the plaintiff had on May 16, 1983, filed a certificate of judgment in the Probate Court of Tuscaloosa County, on June 25, 1984, he had a lien on the real property in that county inherited by Bobby Bigham that was subject to levy and sale under execution, the lien being subject to the statutory power in Patricia Bigham Smith as administratrix to have the property sold for payment of the debts of the estate.
Section 43-8-295, Code 1975, provides that the right to disclaim property or an interest therein is barred if the property is encumbered. Therefore, by virtue of the plaintiff's lien, Bobby Bigham's disclaimer of interest in the real property that his father owned at the time of his death was of no effect. The statute was clearly intended to protect judgment creditors such as the plaintiff in this case.
The law on fraudulent conveyances is expressed in § 8-9-6, Code 1975:
Thus, under the statute, the concurrence of three elements is necessary before a conveyance can be declared fraudulent: (1) that the creditor was defrauded; (2) that the debtor intended to defraud; and (3) that the conveyance was of property out of which the creditor could have realized his or her claim or some portion of it. However, in Granberry v. Johnson, 491 So. 2d 926 (Ala.1986), the Court noted:
"The Granberrys presented evidence that their claims, fixed by the date of the collision (January 9, 1983), preceded the date of the conveyance (January 28, 1983), thus shifting the burden to the defendants to justify the conveyance. The defendants offered no evidence that Johnson owed her daughter a debt or that the conveyance was intended to extinguish a debt. In fact, the defendants conceded that no consideration was given for the conveyance. Because the defendants *1347 did not meet their burden, Johnson's intent to defraud or hinder the Granberrys' recovery (if they won the pending negligence action) must be inferred from the facts as a matter of law. The trial court's judgment for the defendants was erroneous; the conveyance should have been set aside."
491 So. 2d at 928-29.
The principles enunciated in Granberry are applicable in the present case. Bobby Bigham's disclaimer constituted a transfer of his interests in the personal property of his father's estate to his son. See §§ 43-8-294; 43-8-42; and 43-8-45, Code 1975. It is well established that the form of the transaction by which property, liable to the satisfaction of the demands of creditors, is fraudulently sought to be placed beyond their reach is not material. This Court looks beyond mere form to the substance of the transaction. Birmingham Trust & Savings Co. v. Shelton, 231 Ala. 62, 163 So. 593 (1935). Bobby Bigham was insolvent at the time he executed the disclaimer. There is simply nothing in the record tending to show that he executed the disclaimer for any reason other than to place whatever property he expected to receive from his father's estate out of the plaintiff's reach. Consequently, Bobby Bigham's disclaimer of interest in the personal property to which he is entitled from his father's estate is void.
We should note for the sake of guidance that as to personal property not exempt from administration and the payment of debts or charges against the estate, the legal title at the death of the intestate passes to the personal representative; that the interests of the distributees are secondary and are not converted into unqualified ownership except through the process of administration. Patton v. Darden, 227 Ala. 129, 148 So. 806 (1933). Therefore, while an administratrix may be garnished for debts owed by a distributee, no judgment can be entered against her (except by consent) until there is a settlement of the estate. § 6-6-411, Code 1975.
For the foregoing reasons, the judgment of the trial court is reversed and the cause is remanded.
REVERSED AND REMANDED.
MADDOX, ALMON, BEATTY and ADAMS, JJ., concur.
[1] Bobby Bigham is the son of the deceased, John Thomas Bigham. Bobby Bigham has a son who is also named John Thomas Bigham. Patricia Bigham Smith is Bobby Bigham's sister. These are the only children of the deceased. The deceased was not survived by a wife.
[2] A guardian ad litem was appointed to represent the child. | July 31, 1987 |
f8c1129a-1b82-4c9c-8cb6-59124fe9d873 | Ex Parte Ford | 515 So. 2d 48 | N/A | Alabama | Alabama Supreme Court | 515 So. 2d 48 (1987)
Ex parte Pernell FORD.
(In re: Pernell Ford, alias v. State of Alabama).
85-780.
Supreme Court of Alabama.
July 31, 1987.
Rehearing Denied September 25, 1987.
*49 H. Merrill Vardaman and John Thomason, Anniston, for petitioner.
Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
ALMON, Justice.
This is a death penalty case. Certiorari was granted to determine whether the Court of Criminal Appeals erred in upholding the capital murder conviction and death sentence of the petitioner, Pernell Ford.
In 1984, Ford was convicted for the capital murder of Linda Gail Griffith and Willie C. Griffith, committed during the course of a burglary, Code 1975, § 13A-5-40(a)(4). The facts surrounding the petitioner's crime and conviction are set forth in detail in the Court of Criminal Appeals' opinion, 515 So. 2d 34, and need not be restated here.
Ford argues that there is no constitutional right to self-representation. The United States Supreme Court has held to the contrary.
Faretta v. California, 422 U.S. 806, at 819, 95 S. Ct. 2525, at 2533, 45 L. Ed. 2d 562 (1975). This right is also applicable in capital cases; see, Goode v. Wainwright, 704 F.2d 593 (11th Cir.), rev'd on other grounds, 464 U.S. 78, 104 S. Ct. 378, 78 L. Ed. 2d 187 (1983); Smith v. State, 407 So. 2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2260, 72 L. Ed. 2d 864 (1982).
Ford argues that he was not competent to waive his right to counsel. In Faretta, the Court stated that when an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those benefits. 422 U.S. at 835, 95 S. Ct. at 2541, citing Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). The Court went on to say that although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268 (1942).
When Ford informed the court that he wanted to represent himself, the judge conducted a colloquy with him that covered 20 pages in the record. During this colloquy, the judge discussed Ford's rights and discussed in detail each phase of the trial from the jury selection through the penalty phase. The court explained the advantages of having an attorney and how having an attorney could possibly make a difference in the outcome of the trial. The court also told Ford:
It is clear, from the record, that the trial court carefully and completely explained the possible ramifications of representing oneself in a criminal proceeding in order that Ford be able to make a knowing, intelligent decision.
In determining whether Ford was competent to make the decision to waive counsel, the trial court heard testimony from three expert witnesses. The first to testify was Dr. Robert G. Summerlin, a private practitioner with a Ph.D. in psychology. Dr. Summerlin testified that Ford had an I.Q. of 80 and that he saw an emerging psychosis in him. He also testified, however, that there were some questions of the validity of the tests that he gave Ford and that he may have been "malingering or faking." When asked whether Ford was competent to make an intelligent decision about relieving his attorneys from representing him, Dr. Summerlin replied, "I would have some questions about that competency." He would not commit one way or the other. When questioned by the court as to whether Ford understood the colloquy between himself and the judge, he replied that he thought that Ford did.
The second expert to testify was Dr. Wallace W. Wilkerson, a licensed physician and board eligible psychiatrist who was at that time the medical director for the Calhoun-Cleburne *51 County Mental Health Board, Inc. Dr. Wilkerson testified that while Ford did appear to be a sociopath, he did not see any evidence of psychosis in him. Dr. Wilkerson testified that he felt that Ford's I.Q. was higher than 80probably around 110. He also felt that Ford was "Feigning mental illness." When asked if he thought Ford understood the colloquy between himself and the court, Dr. Wilkerson responded, "I think he understood every word that Judge Monk said to him."
The final expert to testify as to Ford's competency was Dr. Harry A. McClaren, who has a Ph.D. in clinical psychology and who was, at that time, the chief psychologist at Taylor Hardin Secure Medical Facility. When asked if Ford was competent to understand the charges that were pending against him, Dr. McClaren testified that Ford had articulated them personally to him and that he (Ford) understood them very well. During examination by the court, the following exchange took place:
Of the three experts who testified, two were of the opinion that Ford was competent to make the decision to discharge his attorneys and one had "questions about that competency." Based on this testimony, we hold that the trial court and the Court of Criminal Appeals did not err in ruling that Ford was competent to make the decision to waive his right to counsel.
Ford argues that he has a constitutional right to have standby counsel sit at the defense table with him. While the Court in Faretta held that a defendant has a right to represent himself, and in McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984), held that the trial court may appoint standby counsel to aid a pro se defendant in an advisory capacity, neither of those cases requires the appointment of standby counsel. Certainly neither of those cases requires that standby counsel sit at the defense table with the defendant.
The right to defend himself may be as important to the pro se defendant as the right to be present at all important stages of trial and the right to present testimony in his own behalf. Wiggins, supra, 465 U.S. at 179, 104 S. Ct. at 951.
Additionally, by placing standby counsel at the defense table, the court would be running the risk that counsel would interfere with the defendant's defense and thus infringe upon his Faretta right of self-representation. If that interference is too great, then a conviction of the defendant could be overturned on those grounds.[1] By placing counsel in the front row of the courtroom, the trial court avoided this possibility. While counsel were not in a position to interfere with Ford's defense, they were readily available to him if he had desired their participation.
Ford asserts that it was improper voir dire examination for the prosecutor to obtain from the prospective jurors a commitment that they would not allow a finding of *52 one of the statutory mitigating factors to prevent a recommendation of the death penalty. The question Ford complains of was as follows:
A party may not solicit a promise to return a particular verdict. Ex parte Dobard, 435 So. 2d 1351 (Ala.1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 745, 79 L. Ed. 2d 203 (1984). In asking this question, the prosecutor was not asking for a commitment or promise from the prospective jurors to vote for the death penalty. He was merely attempting to determine if any of the potential jurors were of a mind-set that would affect their verdict as tending to show bias or interest. The parties have a right, within the sound discretion of the trial court, to do this. Ex parte Ledbetter, 404 So. 2d 731 (Ala.1981). Furthermore, questions concerning jurors' attitudes about capital punishment are not limited to those questions that would elicit information constituting grounds of a challenge for cause. Brown v. State, 288 Ala. 684, 264 So. 2d 553 (1972); Arthur v. State, 472 So. 2d 650 (Ala.Crim.App.1984); rev'd on other grounds, 472 So. 2d 665 (Ala.1985).
Ford argues that the use of the burglary as an aggravating circumstance violated his protection against double jeopardy. This argument was successfully used in Bufford v. State, 382 So. 2d 1162 (Ala.Crim. App.), cert. denied, 382 So. 2d 1175 (Ala. 1980), and Keller v. State, 380 So. 2d 926 (Ala.Crim.App.1979), cert. denied, 380 So. 2d 938 (Ala.1980). However, these cases have since been overruled by this Court. Ex parte Kyzer, 399 So. 2d 330 (Ala.1981). See also Dobard v. State, 435 So. 2d 1338 (Ala. Crim.App.1982), aff'd, Ex parte Dobard, 435 So. 2d 1351 (Ala.1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 745, 79 L. Ed. 2d 203 (1984). The aggravating circumstance charged in the indictment may be used as the circumstance aggravating that charge. Kennedy v. State, 472 So. 2d 1092 (Ala. Crim.App.1984), aff'd, Ex parte Kennedy, 472 So. 2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S. Ct. 340, 88 L. Ed. 2d 325 (1985); Julius v. State, 455 So. 2d 975 (Ala.Crim. App.1983), aff'd, Ex parte Julius, 455 So. 2d 984 (Ala.1984), cert. denied, 469 U.S. 1132, 105 S. Ct. 817, 83 L. Ed. 2d 809 (1985).
Ford claims that this capital offense was not especially heinous, atrocious, or cruel when compared to other capital offenses. The first degree murder of two or more victims is not, by definition, especially heinous, atrocious, or cruel. Ex parte Kyzer, 399 So. 2d 330 (Ala.1981). In the present case, the victims died as the result of multiple stab wounds. It has been held that killings as a result of multiple stab wounds can support a finding of this circumstance. See, Dunkins v. State, 437 So. 2d 1349 (Ala.Crim.App.), aff'd, Ex parte Dunkins, 437 So. 2d 1356 (Ala.1983). In addition, one of the victims, Willie Griffith, was 74 years old and had severe arthritis and watched helplessly as Ford killed her daughter (Linda). Ford then turned on Willie, killing her in much the same fashion.
Ford contends that allowing four potential jurors who were opposed to the death penalty to be struck for cause deprives him of his Sixth Amendment right to a jury made up of a cross-sectional representation of the community. The Constitution does not prohibit the states from "death qualifying" juries in capital cases. Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986). The essence of a "fair cross-section" claim is the systematic exclusion of a "distinctive group" in the community. Groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as those adamantly opposed to the death penalty, are *53 not "distinctive groups" for fair cross-section purposes. Id.
The sentence of death was not imposed in an arbitrary or capricious manner, nor was it handed down under the influence of passion or prejudice. The sentence was appropriate, because the aggravating circumstances greatly outweighed the mitigating circumstances. Accordingly, the conviction and the sentence of death should be affirmed.
AFFIRMED.
MADDOX, JONES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] In McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984), the U.S. Supreme Court, in affirming the defendant's conviction, held that while in that case counsel's interference in the defendant's pro se defense was not great enough to threaten his Faretta rights, if it had been, reversal would have been required. | July 31, 1987 |
836e5d5c-c6a8-406e-93f4-efb70c36af3c | Hughes v. Allenstein | 514 So. 2d 858 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 858 (1987)
Henry C. HUGHES, Jr., Individually and as Executor of the Estate of Henry C. Hughes, Sr., and Myrtle D. Hughes, deceased
v.
Myron K. ALLENSTEIN.
85-849.
Supreme Court of Alabama.
August 7, 1987.
Rehearing Denied September 25, 1987.
*859 Leon Garmon, Gadsden, for appellant.
Roy S. Moore, Gadsden, for appellee.
PER CURIAM.
The original opinion filed in this cause is hereby withdrawn and the following opinion is substituted in lieu thereof.
This is a legal malpractice case, and it comes to this Court on appeal from a summary judgment granted in favor of the defendant attorney, Myron Allenstein, who had been retained by the plaintiff, Henry Hughes, Jr., to file a wrongful death action.[1]
Plaintiff's parents, Henry Hughes, Sr., and Myrtle Hughes, were killed in an automobile accident; the evidence, if believed, showed that the negligent operation of a tractor-trailer truck, owned by Southern Haulers, Inc., and driven by George Porter, Jr., was the cause of the deaths. Hughes retained Myron Allenstein to represent him. Allenstein filed a wrongful death action against Southern Haulers, without joining Porter as a defendant. After negotiations, Southern Haulers made a pretrial settlement offer of $150,000, but, upon advice of counsel, Hughes refused this offer of settlement. The case was tried before a jury, and the jury returned a verdict in favor of Hughes for only $10,000, and judgment was entered upon the jury's verdict. Hughes appealed that judgment to the Alabama Court of Civil Appeals, claiming, inter alia, that the trial jury awarded insufficient damages; the Court of Civil Appeals affirmed the trial court's judgment on all grounds. Hughes v. Southern Haulers, Inc., 379 So. 2d 601 (Ala.Civ.App.1979).
After suffering what he considered an adverse jury verdict in his first wrongful death suit, Hughes, again acting through attorney Allenstein, filed a second wrongful death action, this time against Porter, the truck driver. Attorney Ludger Martin was also an attorney for Hughes in this case, Martin entering his appearance in the case after it had been filed by Allenstein. Porter, in a motion for summary judgment, claimed that the suit was barred because he could have been joined as a party in the first suit against Southern Haulers. His motion was denied by the trial court. In the second case, however, Hughes accepted, upon advice of Allenstein and Martin, a pretrial settlement offer of $25,000.
Following the settlement of his action against Porter, and after executing a release, Hughes hired new counsel and brought a malpractice action against Allenstein in federal district court, and, in that action, claimed damages against Allenstein for Allenstein's alleged negligence in the pretrial preparation for, and in the trial of, the Southern Haulers case. The malpractice case was tried in federal court, and a jury returned a verdict in Allenstein's favor; that judgment has subsequently been affirmed on appeal. Hughes v. Allenstein, 802 F.2d 1397 (11th Cir.1986). Within a month after the jury verdict in favor of Allenstein was returned in the Southern Haulers malpractice suit in federal district court, Hughes brought this malpractice action against Allenstein in state court, but, in this action, he claimed that Allenstein and his partner, Martin, had breached their fiduciary duties, had negligently rendered legal advice, and were negligent in the settlement of the Hughes v. Porter lawsuit for only $25,000.
Allenstein moved for dismissal or, in the alternative, for a summary judgment. He raised as grounds: (1) failure to state a cause of action, (2) collateral or equitable estoppel, (3) release, (4) election of remedies, (5) statute of limitations or laches, (6) judgmental immunity, and (7) res judicata. Hughes appeals from the trial court's grant of Allenstein's motion. Ludger Martin's summary judgment motion is still *860 pending in the trial court, or so it would appear from our examination of this record.
While the trial court did not specify the ground upon which it based its summary judgment in favor of Allenstein, the law in Alabama is clear that this Court is bound to sustain a trial court's judgment if there is a valid basis for it. Cole v. Racetrac Petroleum, Inc., 466 So. 2d 93 (Ala.1985); Kite v. Kite, 444 So. 2d 863 (Ala.Civ.App. 1983).
Allenstein argues here that the trial court's judgment can be sustained on either of several legal principles. He says: (1) that Hughes could not split his cause of action, that is, sue for malpractice in federal court and not join all his claims in that action; (2) that Hughes's present action was barred by the doctrines of res judicata or collateral or equitable estoppel; (3) that Hughes's action was barred because Hughes executed a release to settle the second lawsuit and the terms of the release are broad enough to include this negligence action against him.
Having examined the pleadings in this case, we are of the opinion that Hughes's present action was barred by the doctrine of res judicata, and we affirm the judgment of the trial court.
The essential elements of res judicata are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits. Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala.1978). If these essential elements are met, any issue that was or could have been adjudicated in the prior action is barred from further litigation. Trimble v. Bramco Products, Inc., 351 So. 2d 1357 (Ala. 1977). Here, Hughes's lawsuit against Allenstein in federal court was decided by a jury on the merits. At the time Hughes filed his lawsuit against Allenstein in federal court, he had executed a release in settlement of the lawsuit against Porter.
Even though we recognize that the malpractice alleged in the federal lawsuit involved only Hughes's claim against Southern Haulers and that the basis of the malpractice claim here is Allenstein's alleged negligence in handling the second claim filed against Porter, we believe that the principles of res judicata apply, because of the following reasons: (1) Both lawsuits, the one against Southern Haulers and the one against Porter, arose out of a single incident, the fatal automobile accident; (2) Both malpractice actions, the one filed in federal court and the one filed here, claim that Allenstein was negligent, but the alleged negligence arises out of one attorney-client relationship and involves one cause of action for wrongful death, even though the alleged tort-feasors were sued separately and not jointly and severally.
Looking at the dealings between Hughes and Allenstein in its entirety, we are of the opinion that any alleged malpractice by Allenstein in handling the second lawsuit was so intertwined with the alleged mishandling of the first lawsuit, that Hughes could, and should have, joined this claim with the one he filed in federal district court. In other words, we hold that, in this case, the principle of res judicata applies.
Having concluded that the instant action is barred by the doctrine of res judicata, we find it unnecessary to address Allenstein's other arguments, including the argument that the release signed in settlement of the Hughes v. Porter suit acts as a release of him as an attorney as well.
The judgment of the trial court is due to be, and it hereby is, affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
While I agree that the plaintiff's claim was barred by the principle of res judicata, *861 I also believe that the judgment could be affirmed on the ground that the language of the release signed by Hughes in consideration for the dismissal of the Hughes v. Porter lawsuit is broad enough to include the subject matter of this particular malpractice claim. The settlement between Hughes and Porter and Southern Haulers reads:
The issue of whether a third party is released by a release of "all persons ... for all claims" has received extensive treatment in the law of Alabama. In the case of Williams v. Woodman, 424 So. 2d 611 (Ala.1982), the Court held that a treating physician was released by the release of the tort-feasor:
"`The discharge or satisfaction of a judgment against one of several persons each of whom is liable for a tort, breach of contract, or other breach of duty, discharges each of the others from liability therefor.' Restatement of Judgments § 95 (1942). See also Restatement (Second) of Torts § 886 (1979).
"* * * *
"* * * *
424 So. 2d at 613-15.
This reasoning was held to apply to attorneys in Baker v. Ball, 473 So. 2d 1031 (Ala.1985), wherein the lower court granted attorney Ball a summary judgment:
"`[I]n the absence of fraud, a release supported by a valuable consideration, unambiguous in meaning, will be given effect according to the intention of the parties to be judged by the court from what appears within the four corners of the instrument itself, and parol evidence is not admissible to impeach it or vary its terms.'"
Miles v. Barrett, 233 Ala. 293, 134 So. 661 (1931).
"`[C]onsideration for a release moving from a third person on behalf of the releasee to the releasor ... is as adequate as a consideration moving directly from the releasee to the releasor.'
"* * * *
473 So. 2d at 1035-36.
In Baker v. Ball, the purchasers of a home had brought suit against the sellers and the realtors for fraud; they also sought rescission of the contract. A directed verdict was entered in favor of the defendants, but that judgment was reversed by this Court and the case was remanded for a new trial. Before commencement of the new trial, a settlement agreement was reached. Shortly thereafter, the defendant sellers (Bakers) brought suit alleging that the realtor had negligently failed to ensure restoration of their Veterans' Administration loan eligibility, and had failed to ensure their release from mortgage liability. That suit was settled as well, but the Bakers then sued Ball, the attorney who had defended them in the original action by the purchasers. The Bakers alleged essentially the same claims in their complaint against Ball as they had alleged in their complaint against the realty company. On appeal from a summary judgment, this Court ruled that, under the language of the release executed between the Bakers and the realtor, Ball had also been released from all liability. In that case, the pertinent language of the release was as follows:
On that basis, this Court stated:
Ball, 473 So. 2d at 1036.
Of course, I do not suggest that the law in Alabama would authorize the execution of a release or the taking of a judgment to bar all claims against an attorney. If the claim for the attorney's negligence pertained to conduct that occurred after the release was executed or after the judgment *863 was taken, then, in that event, the plaintiff could state a claim against the attorney upon which he might get some relief. Also, if the judgment or the execution of the release was procured by fraud, or if the attorney was guilty of misrepresenting facts, upon which the client relied to his detriment in executing the release or in taking the judgment, then the client might be able to prove a claim against his attorney. Of course, if there is a reservation in the release of the right to pursue further claims, then a plaintiff may also state a cause of action.
[1] The case was filed against Allenstein and his partner, Ludger Martin, but this appeal involves only the March 24, 1986, summary judgment in favor of Allenstein, made final pursuant to Rule 54(b), Ala.R.Civ.P. | August 7, 1987 |
8ee40ff8-bd10-4d8a-a7f3-441fc09da304 | Lader v. LOWDER REALTY B. HOMES & GARDENS | 512 So. 2d 1331 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 1331 (1987)
Royce LADER and Sherry Lader
v.
LOWDER REALTY BETTER HOMES AND GARDENS, et al.
85-1486.
Supreme Court of Alabama.
July 31, 1987.
Donald R. Harrison, Montgomery, for appellants.
Sterling G. Culpepper, Jr., of Balch & Bingham, Montgomery, for appellees.
*1332 HOUSTON, Justice.
The plaintiffs, Royce Lader and Sherry Lader, appeal from a summary judgment granted in favor of the defendants, The Colonial Companies, Lowder Realty Better Homes and Gardens, Inc. ("Lowder Realty"), John Kilgore, and Grant Sullivan, in this action seeking damages for breach of contract and for fraud. We affirm.
The only evidence before the trial court at the time it ruled on the motion was the deposition of Royce Lader. It shows the following:
On August 28, 1983, the plaintiffs "listed" their home for sale with John Kilgore, an agent for Lowder Realty. The plaintiffs told Kilgore that if their home could be sold they would be interested in buying another one through him. Kilgore examined the plaintiffs' 1982 federal income tax return and advised the plaintiffs that their income was such that they would qualify for an FHA Alabama bond loan should they purchase another home. Kilgore was successful in finding a buyer for the plaintiffs' home, and the sale was subsequently closed on November 19, 1983. On October 23, 1983, the plaintiffs entered into a written contract with Lowder Construction Company to purchase a new home. Under the contract, which was negotiated by Kilgore, the plaintiffs' obligation to purchase was made contingent on their qualifying for a bond loan. Sometime prior to November 19, 1983, the date the sale of the plaintiffs' home was closed, the plaintiffs were notified that they did not qualify for a bond loan because their income in 1982 was too high. The plaintiffs then entered into a written contract with Lowder Construction Company to purchase a new home contingent upon their qualifying for a conventional adjustable rate mortgage loan. After they learned that they did not qualify for a bond loan, and while applying for the conventional loan, the plaintiffs asked Kilgore if they could wait and apply for a bond loan on the basis of their 1983 income. Kilgore never gave them an answer. The plaintiffs received the conventional loan and eventually moved into their new home on or about December 21, 1983. The plaintiffs had no contact with any representative of Lowder Realty between December 21, 1983, and February 20, 1984. On February 20, 1984, the plaintiffs contacted Grant Sullivan of Lowder Realty to discuss the "situation with the bond money" because they "were led to believe that things were going to be set right." Sullivan told the plaintiffs that he would check into the matter. Sullivan called the plaintiffs back two days later and said that Kilgore denied ever seeing their federal income tax return. After further discussion, during which the plaintiffs inquired as to whether Lowder Realty could somehow help them get their mortgage payments reduced (e.g., by obtaining for them a "different loan," by "buying [their conventional] loan down to the payment," or by paying them $10,000 in cash), Sullivan said that he would check into the matter further. Two days later Sullivan called the plaintiffs and told them that Lowder Realty could do nothing further and stated that there was "nothing further to discuss." The plaintiffs filed this lawsuit on October 11, 1985.
The thrust of the plaintiffs' complaint is that the defendants are liable for breach of contract and for fraud as the result of Kilgore's alleged representations concerning the plaintiffs' ability to qualify for a bond loan. The basis for the breach of contract claim is that Kilgore promised to obtain a bond loan for the plaintiffs. The basis for the fraud claim is that Kilgore misrepresented to the plaintiffs that he would get them a bond loan.
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981).
In Mayfield v. Cotton States Mutual Insurance Co., 495 So. 2d 548 (Ala.1986), this Court held that all parol negotiations, understandings, and agreements between the plaintiffs and their insurance agent (who was named as a defendant in the case) were merged into the written contract *1333 of insurance issued by the company. In that case the plaintiffs sought to hold the agent liable as an insurer of their property based upon an alleged oral agreement to insure. While that case and this one are factually distinguishable, the rule applied there is equally applicable here. Royce Lader testified in his deposition that Kilgore told him on August 28, 1983, that the plaintiffs would qualify for a bond loan. Thereafter, on October 23, 1983, the plaintiffs entered into a written contract with Lowder Construction Company to purchase a new home. Under that contract, which was negotiated by Kilgore, the plaintiffs' obligation to purchase was made contingent on their qualifying for a bond loan. The contract did not specify that the plaintiffs were to receive a bond loan. In fact, it clearly indicates that the plaintiffs were very much aware that they might not qualify. Any parol negotiations, understandings, or agreements that the plaintiffs may have had with Kilgore concerning their ability to obtain a bond loan merged into the written contract between the plaintiffs and Lowder Construction Company, and that contract controls this case. Therefore, summary judgment was proper on the breach of contract claim.
Summary judgment was also proper on the fraud claim. Royce Lader testified in his deposition that Kilgore told the plaintiffs on August 28, 1983, that they would qualify for a bond loan. The plaintiffs were notified prior to November 19, 1983, that they did not qualify. The one-year statute of limitations applicable to fraud actions, §§ 6-2-39 and 6-2-3, Code 1975, was in effect at the time the plaintiffs were notified that they did not qualify for a bond loan. The plaintiffs' contention is that they did not discover the fraud until their subsequent conversations with Sullivan in February 1984. Thus, they argue that their fraud action was not barred as of January 9, 1985, when the legislature abolished § 6-2-39, the one-year statute of limitations, and transferred the one-year actions to § 6-2-38, the two-year statute, and amended § 6-2-3, the "saving clause," to recognize that fraud actions were thenceforth subject to the two-year statute.[1] They say that since their lawsuit was filed within two years of the February 1984 conversations with Sullivan, it is timely. We disagree.
Under § 6-2-3, supra, a claim for fraud is considered as having accrued at the time of "the discovery by the aggrieved party of the fact constituting the fraud." Fraud is "discovered" when it ought to or should have been discovered. Thus, the time of "discovery" is the time at which the party actually discovered the fraud, or had facts which, upon closer examination, would have led to the discovery of the fraud. Kelly v. Smith, 454 So. 2d 1315 (Ala.1984). The plaintiffs knew prior to November 19, 1983, that they did not qualify for a bond loan. There is nothing in the record tending to show that the plaintiffs should not have discovered a fraud at that time. Sullivan's subsequent conversations with the plaintiffs concerned only the possibility of Lowder Realty's helping the plaintiffs somehow to secure a reduction of their monthly mortgage payments. The statute of limitations on the fraud claim expired sometime prior to November 19, 1984. Actions barred as of January 9, 1985, by the one-year statute of limitations were not revived by the transfer of fraud actions to the two-year statute. Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263 (Ala.1981). See also Watson v. Trail Pontiac, Inc., 508 So. 2d 262 (Ala.1987).
AFFIRMED.
MADDOX, ALMON, BEATTY and ADAMS, JJ., concur.
[1] See Ala. Acts 1984-85, Act No. 85-39. | July 31, 1987 |
dd82bb88-dfda-4c5c-82fb-fe19f46bce09 | Ex Parte Avery | 514 So. 2d 1380 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 1380 (1987)
Ex parte Cassie AVERY.
(Re Cassie AVERY v. EAST ALABAMA MEDICAL CENTER.)
85-272.
Supreme Court of Alabama.
July 31, 1987.
Faith R. Cooper and Margaret S. Childers of Legal Services Corp. of Alabama, Montgomery, for petitioner.
Joe S. Bailey of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for respondent.
ADAMS, Justice.
This case involves the respective rights of creditors and debtors in a garnishment proceeding. Plaintiff, East Alabama Medical Center, agreed to a consent judgment with defendant, Cassie Avery, in the amount of $329.55, for medical services provided to Avery. On November 14, 1983, *1381 the Lee County District Court entered judgment in that amount, but the judgment was without waiver of Avery's right to select and claim exemptions from process for the collection of any debts incurred.
On December 5, 1983, a writ of garnishment was directed at Avery's employer, the AMPEX Corporation. As a result, Avery exercised her statutory right to select and claim $3,000.00 worth of personal property as exempt from garnishment or other levy, pursuant to Code of Alabama 1975, § 6-10-6. On December 7, 1983, Avery filed a claim of exemptions, and on February 2, 1984, she amended her claim. Included in the claims both times were $2,200.00 in tangible personal property and wages up to $800.00 per month. East Alabama Medical Center did not file a contest challenging the validity or accuracy of the claims of exemptions or inventory.
On January 3, 1984, Avery filed a motion to quash the writ of garnishment. In support of this motion, she maintained that the wages subject to the writ constitute exempt personal property pursuant to § 6-10-6. On February 24, 1984, the district court issued an order setting aside exemption, which, inter alia, denied the motion to quash. Avery then appealed, and the Court of Civil Appeals affirmed the district court's judgment denying the motion to quash the writ of garnishment. The Court of Civil Appeals found that the writ of garnishment could not be quashed because future wages can be garnished, but cannot be claimed as exempt, under Alabama law.
We granted certiorari in this case to review the Court of Civil Appeals' holding that future wages cannot be included in exemptable property. We are of the opinion that the Court of Civil Appeals erred in this regard, and we reverse its judgment.
Before addressing the issue upon which the writ of certiorari was granted, we point out that the judgment of the Court of Civil Appeals affirming the denial of the motion to quash the writ of garnishment is due to be reversed for another reason: East Alabama Medical Center failed to contest the claim of exemption and, therefore, precluded itself from questioning that claim on appeal. Section 6-10-6, provides for the filing of declarations of claimed exemptions. Section 6-10-23, Code 1975, states:
Moreover, § 6-10-24 provides:
As we have previously stated, Avery filed no waiver of exemption. Thus, the property cannot be subject to levy unless the creditor, East Alabama Medical Center, filed a contest of the claimed exemptions. This Court has held that a contest is the exclusive method of preserving a levy after a claim of exemption is filed, Kennedy v. Smith, 99 Ala. 83, 11 So. 665 (1892); and that a claim of exemption, unless properly contested, must be upheld and the levy or other process released. Totten & Bros. v. Sale & Co., 72 Ala. 488 (1883); Poole v. Griffith, 216 Ala. 120, 112 So. 447 (1927).
Since East Alabama Medical Center did not properly contest the claim of exemptions, its writ of garnishment should have been quashed.
Our holding in this regard makes a resolution of the issue of whether future wages are exemptable property unnecessary in this case; however, because of the implications of the Court of Civil Appeals' decision on future litigation in this area, we now focus our attention on that issue.
In its opinion, the Court of Civil Appeals recognized that a writ of garnishment should be quashed if there is no garnishable property, citing Harris v. National Bank & Trust Co., 406 So. 2d 968 (Ala. Civ.App.1981). The court found that there *1382 was garnishable property in this case, in the form of future wages, pursuant to Code of Alabama (1975), § 6-10-7. We are of the opinion that the court was correct in this regard. However, the court went further to find that future wages could not be claimed as exempt under § 6-10-6, reasoning that "property" under § 6-10-6 could not be found to include future wages without specific legislative enactment. Such specific legislative enactment is found in Code of Alabama (1975), § 6-10-37, which allows for the claiming of exemptions in the garnishment contest. The statute begins:
It is the opinion of this Court that this section contains a clear expression of the legislative intent that property which can be garnished can also be claimed as exempt. A different result would be untenable.
The purpose of the exemption laws is to protect the debtor and his family from being deprived of the items necessary for subsistence, and possibly to prevent them from becoming a burden upon the public. Broadway v. Household Finance Corp. of Huntsville, 351 So. 2d 1373 (Ala.Civ.App. 1977). The decision of the Court of Civil Appeals in the case at bar thwarts this purpose. The holding of the Court of Civil Appeals gives an undue advantage to the creditor, albeit the statutes were designed to protect the debtor. This Court has held on numerous occasions that exemption laws must be liberally construed. See Enzor v. Hurt, 76 Ala. 595 (1884); Kennedy v. Smith, 99 Ala. 83, 11 So. 665 (1892); McPherson v. Everett, 277 Ala. 519, 172 So. 2d 784 (1965). In the context of the garnishment and exemption laws, courts of this state should be concerned with the rights of the debtor, as the creditor is almost always in a better position to protect its interests.
Finally, we have been presented with no justification for allowing a creditor to garnish certain property, but refusing to allow a debtor to claim that property as exempt. Not only is such a result fundamentally unfair, but it is unsupported by our case law and statutes. Therefore, we are of the opinion that future wages can be claimed as exempt, and that, to the extent the judgment of the Court of Civil Appeals is contrary to this holding, it is hereby reversed and the cause remanded for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
JONES, ALMON, SHORES and BEATTY, JJ., concur.
HOUSTON, J., concurs in the result.
TORBERT, C.J., and MADDOX and STEAGALL, JJ., concur in part, and dissent in part.
STEAGALL, Justice (concurring in part, dissenting in part).
I concur in that part of the majority opinion which holds that the writ of garnishment should be quashed due to the failure of East Alabama Medical Center to contest the claim of exemption. However, I dissent from that part of the majority opinion which holds that future wages can be claimed as exempt. I agree with the Court of Civil Appeals that future wages cannot be claimed as exempt under Ala. Code 1975, § 6-10-6, and with its reasoning that "property" as defined under § 6-10-6 does not include future wages without specific legislative authority.
TORBERT, C.J., and MADDOX, J., concur. | July 31, 1987 |
b4e0bce8-b392-466d-9d07-af6155462bfb | Baker v. McCormeck | 511 So. 2d 170 | N/A | Alabama | Alabama Supreme Court | 511 So. 2d 170 (1987)
Robert E. BAKER
v.
Wayne McCORMECK.
86-223.
Supreme Court of Alabama.
July 2, 1987.
Kearney Dee Hutsler, of Baxley, Dillard & Dauphin, Birmingham, for appellant.
*171 Sydney F. Frazier, of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee.
ADAMS, Justice.
This is an appeal from a summary judgment in favor of the defendant, Wayne McCormeck. McCormeck is a chiropractor. On August 29, 1983, the plaintiff, Robert Baker, went to McCormeck to be treated for neck pain and headaches. After his treatment by McCormeck he began displaying symptoms of a stroke. Later, he was diagnosed as having suffered a stroke. He filed a claim of negligence and wantonness against McCormeck on June 14, 1985. The trial court granted McCormeck's motion for summary judgment on the grounds that the claim was barred by the statute of limitations. On appeal, Baker argues that the trial court erred when it permitted McCormeck to amend his answer and that his claim should not be barred by the statute of limitations. We affirm.
Baker first argues that the trial court should not have allowed McCormeck to amend his answer. About a week before the trial, McCormeck amended his answer to add the affirmative defense of the statute of limitations. This was over one year after the filing of the plaintiff's claim. Rule 15(a), A.R.Civ.P., allows amendment to pleadings at any time when justice so requires. Ex parte Tidmore, 418 So. 2d 866 (Ala.1982). The trial court's decision allowing the amendment will be reversed only upon a showing of an abuse of discretion. Matthews Bros. Const. Co. v. Lopez, 434 So. 2d 1369 (Ala.1983). In the present case, Baker argues that the amendment should not have been allowed, as it came over a year after the filing of the claim and one week before trial. We do not find, and Baker fails to allege, specific abuse of discretion by the trial court in allowing McCormeck's amendment.
Baker next argues that the appropriate statute of limitations should be the two-year statute of limitations, and not the one-year statute of § 6-2-39, Code of Alabama (1975). He argues that § 6-5-482, setting a two-year statute of limitations for physicians, should also apply to chiropractors. In Sellers v. Picou, 474 So. 2d 667 (Ala.1985), we held that a podiatrist was not to be included under the § 6-5-482 definition of those covered thereunder, in that a podiatrist is not licensed to practice medicine or osteopathy in Alabama. Likewise, McCormeck is not licensed to practice medicine or osteopathy in the State of Alabama. As pointed out in Sellers, supra, the Medical Liability Act, § 6-5-480 et seq., applies to "[a]ny professional corporation or any person employed by physicians, dentists or hospitals who are directly involved in the delivery of health care services." § 6-5-481(8). In Sellers, supra, we noted specifically that the legislature provided express coverage for dentistry, even though the practice of dentistry is controlled by a separate board. The opinion goes on to state that podiatry "could have been included within the scope of the Act." 474 So. 2d at 669. The same analysis and logic applies to this case. The legislature could have included chiropractors in the coverage of the Medical Liability Act if it had seen fit to do so. However, it did not. Therefore, the trial court was correct in ruling that Baker's claim was time barred.
AFFIRMED.
JONES, ALMON, SHORES and STEAGALL, JJ., concur. | July 2, 1987 |
5b3e3aea-f988-4eb7-93cc-b2054cb37329 | State Farm Mut. Auto. Ins. Co. v. Lewis | 514 So. 2d 863 | N/A | Alabama | Alabama Supreme Court | 514 So. 2d 863 (1987)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
Howard C. LEWIS III and James Rhodel Baker.
James Rhodel BAKER
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
85-1213, 85-1214.
Supreme Court of Alabama.
August 14, 1987.
Rehearing Denied September 25, 1987.
Robert E. Jones III of Poellnitz, Cox & Jones, Florence, for appellant/cross-appellee.
Roger H. Bedford, Sr., of Bedford, Bedford & Rogers, Russellville, for appellee/cross-appellant James Rhodel Baker.
Howard Lewis III, pro se.
MADDOX, Justice.
This appeal and cross-appeal arise from a declaratory judgment holding that State Farm Mutual Automobile Insurance Company is obligated to pay under a policy it issued to Howard C. Lewis III, but which *864 denied Lewis's claim that the liability coverage under another policy issued to him "stacked." The policies in question were issued on Lewis's personal vehicles. State Farm contends that the policies do not extend coverage to damage incurred while Lewis was driving a pickup truck, while acting within the line and scope of his employment with Keith and Howard Grissom, d/b/a Grissom Dairy. James R. Baker, the driver of the other damaged vehicle, cross-appeals. He asks us to reverse the trial court's determination that the coverage under Lewis's two policies could not be combined, or "stacked."
The facts in these cases, as they relate to the dispute at hand, were stipulated to by the parties. The stipulation reads:
The parties also stipulated to the pertinent portions of the policies in question, which read:
"* * *
"PRIVATE PASSENGER CAR means a car:
"1. with four wheels;
"2. of the private passenger or station wagon type; and
"3. designed solely to carry persons and their luggage.
"* * *
"THERE IS NO COVERAGE FOR NON-OWNED CARS:
"2. WHILE:
"* * *
"If there is other coverage
"1. Policies Issued by Us to You.
"2. Coverage Available From Other Sources.
"3. Temporary Substitute Car, Non-Owned Car or Trailer.
State Farm argues in its brief that the policy is clear, as written. State Farm relies on what it says is the plain language of the exclusion of non-owned cars, "used in any other business or occupation." State Farm also relies upon judicial construction of similar phrases in King v. Woodward, 464 F.2d 625 (10th Cir.1972), Home Indemnity Co. v. Northwestern Nat'l. Ins. Co., 280 F. Supp. 446 (D.Mont. 1968), and Seaford v. Nationwide Mutual Ins. Co., 253 N.C. 719, 117 S.E.2d 733 (1961).
In support of the trial court's ruling, Baker sets forth the general rules of insurance contract construction and cites the case of Pontico v. Roussel, 380 So. 2d 649 (La.App.1980), for the proposition that the extent of the "other business or occupation" exception is unclear. Baker thus argues that an ambiguity was created through the use of that language, and that the trial court correctly construed the language of the policy in favor of coverage.
The law of construction of insurance contracts in Alabama is well established. Exceptions to coverage are to be interpreted as narrowly as possible in order to provide maximum coverage for the insured, Georgia Cas. & Sur. Co. v. Universal Underwriters Ins. Co., 534 F.2d 1108 (5th Cir.1976), and such clauses must be construed most strongly against the company that issued the policy, American Liberty Ins. Co. v. Soules, 288 Ala. 163, 258 So. 2d 872 (1972). However, insurance contracts, like other contracts, are construed to give effect to the intention of the parties thereto, and when the intention is clear and unambiguous, the policy must be enforced as written. Ketona Chemical Corp. v. Globe Indem. Co., 404 F.2d 181 (5th Cir. 1968); Newman v. St. Paul Fire & Marine Ins. Co., 456 So. 2d 40 (Ala.1984); Southern Guaranty Ins. Co. v. Wales, 283 Ala. 493, 218 So. 2d 822 (1969). Finally, in determining the intention of the parties, the court must examine more than an isolated sentence or term; it must read each phrase in the context of all other provisions, in order to arrive at the true intent of the parties. North River Ins. Co. v. Jackson, 278 Ala. 604, 179 So. 2d 731 (1965); Mobile Psychiatric Service, Inc. v. Employers Life Ins. Co., 362 So. 2d 244 (Ala.Civ.App.1978).
In applying the above-stated principles, we must conclude that the policies in question did not provide coverage for an accident involving the insured while he was driving "a non-owned car ... while ... used in any other business or occupation," unless the car was a "private passenger car." Baker argues that the policy is ambiguous, but when the "non-owned car" exclusion is read in its entirety, it cannot reasonably be said to be ambiguous. Part two of the exclusion omits coverage for non-owned cars while being serviced or being used by anyone in the car business, or while being used in any other business or occupation. We recognize that while the exclusion of non-owned cars used in a business or occupation "does not apply to a private passenger car driven or occupied by the first person named in the declarations, his or her spouse or their relatives" (emphasis in policy), we think it applies here. The "[f]irst person named in the declarations" (Lewis) was driving the "non-owned car" (a pickup truck) "used in any other business or occupation" (Grissom Dairy). The critical question is whether the pickup truck he was driving was a "private passenger car." The policy defines a "private passenger car" as meaning *866 a "car," "with four wheels," "of the private passenger or station wagon type," "and designed solely to carry persons and their luggage." Unquestionably, the pickup truck here was not "designed solely to carry persons and their luggage"; therefore, it was not a "private passenger car."
Lewis, the insured, could not have reasonably expected that the two State Farm policies he bought would cover him while he was operating a company pickup truck in the line and scope of his employment.
Because we have concluded that the policies do not extend Lewis's coverage to the accident in question, the trial court's decision on the stacking issue is due to be affirmed.
In light of the foregoing, the judgment of the trial court is due to be, and it hereby is, affirmed on the cross-appeal, and reversed and remanded on the appeal.
Case 85-1213, REVERSED AND REMANDED.
Case 85-1214, AFFIRMED.
ALMON, BEATTY, ADAMS and HOUSTON, JJ., concur. | August 14, 1987 |
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