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9c2c9b16-7248-4c09-9a07-6db2aff44e9c | Ex Parte State | 682 So. 2d 500 | 1951521 | Alabama | Alabama Supreme Court | 682 So. 2d 500 (1996)
Ex parte State of Alabama.
Re Robert Earl COUNCIL
v.
STATE.
1951521.
Supreme Court of Alabama.
September 27, 1996.
Jeff Sessions, Atty. Gen., and Sandra J. Stewart, Asst. Atty. Gen., for Petitioner.
No brief filed for Respondent.
ALMON, Justice.
WRIT DENIED. NO OPINION.
HOUSTON, INGRAM, and BUTTS, JJ., concur.
HOOPER, C.J., concurs specially.
HOOPER, Chief Justice (concurring specially).
I concur in the order denying certiorari review; however, I feel that the Court of Criminal Appeals has misstated this Court's holding in Ex parte Monk, 557 So. 2d 832 (Ala.1989). The law with respect to a capital defendant's right to discovery needs clarification.
In its opinion in this case, Council v. State, 682 So. 2d 495 (Ala.Crim.App.1996), the Court of Criminal Appeals correctly cited Monk, but then incorrectly stated that "[t]he Alabama Supreme Court in Monk established an extensive right to discovery in capital cases because of the fact that `any evidence' may be relevant to mitigating a sentence of death." 682 So. 2d at 499. It is incorrect to say that Monk established an "extensive right" to discovery in capital cases. On the contrary, this Court in Monk merely held that a trial judge, in his discretionary authority, may order discovery from the prosecution beyond that required by the constitution, *501 state law, or the Rules of Criminal Procedure. In Monk, this Court held that "capital cases by their very nature are sufficiently different from other cases to justify the exercise of judicial authority to order discovery from the prosecution" that goes beyond that required by the constitution or by state law or rule. 557 So. 2d at 836 (emphasis added). This principle has been reaffirmed in numerous opinions. See Kuenzel v. State, 577 So. 2d 474, 520 (Ala.Crim.App.1990), aff'd, 577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991) (citing Ex parte Monk, 557 So. 2d 832, 836-38 (Ala. 1989)); accord, Nichols v. State, 624 So. 2d 1328, 1333 (Ala.Crim.App.1992); Duncan v. State, 575 So. 2d 1198, 1202 (Ala.Crim.App. 1990), cert. denied, 575 So. 2d 1208 (Ala.1991), rev'd on other grounds on return to remand, 612 So. 2d 1304 (Ala.Crim.App.1992); Smith v. State, [Ms. CR-91-1733, March 8, 1996] ___ So.2d ___ (Ala.Crim.App.1996). While a trial court, pursuant to Monk, can, in its discretionary authority, order extensive discovery in a capital case beyond the discovery required by the constitution or by state law or rule, the defendant in a capital case does not have a right to that discovery. Monk made it clear that whether to order discovery beyond that required by the constitution or by state law or rule is discretionary with the trial court. 557 So. 2d at 836.
I agree that certiorari review should be denied. However, I point out that Monk does not establish an "extensive right" to discovery for defendants in capital cases. | September 27, 1996 |
a4896b7e-a8a0-4783-a0b2-2e836c1852d8 | Ex Parte Bryant | 682 So. 2d 39 | 1951041 | Alabama | Alabama Supreme Court | 682 So. 2d 39 (1996)
Ex parte Thomas E. BRYANT.
(In re State of Alabama
v.
Thomas E. Bryant).
1951041.
Supreme Court of Alabama.
July 19, 1996.
*40 Ronald W. Wise, Montgomery, and William M. Bowen, Jr., of Steiner, Crum & Baker, Montgomery, for Petitioner.
Jeff Sessions, Atty. Gen., LaVette Lyas-Brown, Asst. Atty. Gen., for Respondent.
HOUSTON, Justice.
Thomas E. Bryant petitions this Court for a writ of mandamus directing that his pending criminal trial be conducted by a circuit court judge from outside Alabama's 13th Judicial Circuit (Mobile County), because of an alleged potential for bias against him on the part of judges from Mobile County due to the peculiar nature of the case against him. In the alternative, Bryant asks for a writ of mandamus directing Mobile County Circuit Court Judge Chris Galanos to recuse himself from presiding over the criminal case against him.
Bryant petitioned this Court for extraordinary relief pursuant to Rule 21(e)(1), Ala. R.App.P., after the Court of Criminal Appeals, with one judge dissenting, denied his original petition for the writ of mandamus. The facts underlying this petition were set out by the Court of Criminal Appeals in its opinion:
Ex parte Bryant, 675 So. 2d 552, 553 (Ala. Crim.App.1996).
In Ex parte Cotton, 638 So. 2d 870, 872 (Ala.1994), this Court stated:
The standard for recusal is an objective one: whether a reasonable person knowing everything that the judge knows would have a "reasonable basis for questioning the judge's impartiality." Cotton, 638 So. 2d at 872. The focus of our inquiry, therefore, is not whether a particular judge is or is not biased toward the petitioner; the focus is instead on whether a reasonable person would perceive potential bias or a lack of impartiality on the part of the judge in question. In In re Sheffield, 465 So. 2d 350, 357 (Ala.1984), this Court wrote:
(Some emphasis original; some emphasis added.) Justice Jones, in a special concurrence in Morgan County Commission v. Powell, 292 Ala. 300, 312, 293 So. 2d 830, 840 (1974), eloquently stated the reasoning behind this objective "reasonable person/appearance of impropriety" standard:
Applying these principles to Bryant's first contention, we must determine if the extraordinary facts underlying the case against Bryant and the peculiar nature of the case against him "are such that it is reasonable for a party, for members of the public, or for counsel to question the impartiality of a circuit court judge from Mobile County. Cotton, 638 So. 2d at 872. The issue is not whether any of those judges are actually biased against Bryant. The undisputed facts show the following: (1) Bryant is accused of theft from conservatorships and estates over which he was appointed by Mobile County judges to act as guardian or conservator; (2) The theft that he is accused of is both systematic and enormous ($3,000,000-plus); (3) The allegations against Bryant have been the *42 focus of intense media coverage; (4) Bryant's change of venue motion was granted because of the high-profile nature of the case against him and the perceived local bias against him; (5) The first Mobile County circuit court judge to whom Bryant's case was assigned chose voluntarily to remove himself from Bryant's case after Bryant made his first motion for recusal; and (6) Bryant was a very active member of the Mobile County bar, having recently served as president of the county bar association, and he had been active in, or at least a contributor to, a large number of Mobile County judicial election campaigns.
After having considered the very peculiar nature of the case against Bryant and the facts surrounding that case, we hold that Bryant is entitled to a writ of mandamus ordering that he be tried before a circuit court judge from outside the 13th Judicial Circuit. Such an order as this is reserved for only the most extraordinary of circumstances. Especially relevant to our decision in this case is the nature of the crime Bryant is charged with committing. The State's case is based solely upon Bryant's alleged theft of millions of dollars from various conservatorships, guardianships, and estates over which Bryant had been appointed by Mobile County probate and circuit court judges to serve in a fiduciary capacity. The essence of the charges against Bryant is a systematic, intentional, and egregious violation of the trust that had been placed in Bryant by Mobile County's judiciary. Considering the extreme facts of this controversial case, reasonable persons would have reason to question the impartiality of the judges of the 13th Judicial Circuit, whose trust the defendant is charged with grievously breaching.
Because we hold that Bryant is entitled to a writ of mandamus ordering that his trial be conducted by a circuit court judge from outside the 13th Judicial Circuit, we need not address Bryant's contention that Judge Galanos, who serves on the 13th Judicial Circuit, should be ordered to recuse.
WRIT GRANTED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, and INGRAM, JJ., concur.
ALMON and COOK, JJ., concur in the result.
BUTTS, J., dissents. | July 19, 1996 |
b13e510b-b144-4564-aa2d-d00e690bc49b | Ex Parte Anderson | 682 So. 2d 467 | 1950287 | Alabama | Alabama Supreme Court | 682 So. 2d 467 (1996)
Ex parte Katina Latrice ANDERSON.
(Re Barbara Lynn HUGHES v. Katina Latrice ANDERSON).
1950287.
Supreme Court of Alabama.
July 26, 1996.
*468 Steadman S. Shealy, Jr. and Richard E. Crum of Cobb & Shealy, P.A., Dothan, for Petitioner.
Amy M. Shumate, Dothan, for Respondent.
MADDOX, Justice.
This petition for the writ of certiorari presents the question whether the defendant, who was driving her friend to the doctor, and who had the benefit of Alabama's Guest Statute, was entitled to a summary judgment on the passenger's wantonness claim. The trial court entered a summary judgment in favor of the defendant driver. The Court of Civil Appeals reversed. Hughes v. Anderson, 682 So. 2d 463 (Ala.Civ.App.1995). We have granted certiorari review, and we conclude that the trial court properly entered the summary judgment. Therefore, we reverse the judgment of the Court of Civil Appeals.
We set out the facts briefly for a better understanding of the legal issue presented. The plaintiff, Barbara Hughes, was injured in an automobile accident. The defendant, Katina Latrice Anderson, was driving Hughes to the doctor in Hughes's automobile at the time of the accident. Hughes was taking a prescription medication that prevented her from operating a motor vehicle.
The evidence shows that on the day of the accident a light rain was falling and the roads were wet. While the two women were on *469 their way to the doctor's office, an accident occurred when Anderson, attempting to turn left at an intersection, crossed in front of an oncoming lane of traffic. Anderson could not see if any traffic was approaching her as she turned, because her vision was partially blocked by an automobile, which was waiting to turn left in the opposite left-turn lane. While Anderson was attempting to turn left, her automobile was hit on the passenger side by an oncoming car driven by Patricia Dansby, who was unable to stop her car because of the wet conditions of the roadway. As a result of the accident, Hughes was injured and her automobile was damaged.
Initially, Hughes sued Dansby, alleging negligence and wantonness, but after Dansby answered and moved for a summary judgment, arguing that she had not caused the accident, Hughes voluntarily dismissed her claim against Dansby and amended her complaint to add Anderson as a defendant, alleging wantonness on the part of Anderson.
Anderson moved for summary judgment, arguing that Alabama's Guest Statute, as codified at § 32-1-2, Ala.Code 1975, precluded a recovery against her. In support of her motion for summary judgment, Anderson presented evidence and affidavits to show that she had not acted wantonly. The plaintiff, Hughes, responded generally, basing her opposition to the motion on the language of the Guest Statute and on the affidavits presented by Anderson. The trial court ruled that Hughes had not produced substantial evidence to support her wantonness claim and entered a summary judgment in favor of Anderson.
Hughes appealed. The Court of Civil Appeals reversed, holding that Hughes had presented sufficient evidence to preclude the summary judgment on the wantonness claim.
In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether "the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988); Rule 56(c), A.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990).
Anderson argues that Hughes did not present substantial evidence to defeat the defendant's properly supported motion for summary judgment. In order to hold a defendant liable under Alabama's Guest Statute, a plaintiff must show that the defendant's actions amounted to wanton conduct. The Alabama Guest Statute, codified as § 32-1-2, Ala.Code 1975, states:
The purpose of this statute is "to prevent generous drivers, who offer rides to guests, from being sued in what often are close cases of negligence." Roe v. Lewis, 416 So. 2d 750, 753 (Ala.1982) (citing Blair v. Greene, 247 Ala. 104, 22 So. 2d 834 (1945)). In a case subject to the Guest Statute, a plaintiff's showing of "wanton misconduct" requires more than a showing of some form of inadvertence on the part of the driver; it requires a showing of some degree of conscious culpability. George v. Champion Ins. Co., 591 So. 2d 852 (Ala.1991).
*470 What constitutes wanton misconduct depends on the facts presented in each particular case. Central Alabama Electric Cooperative v. Tapley, 546 So. 2d 371 (Ala.1989); Brown v. Turner, 497 So. 2d 1119 (Ala.1986); Trahan v. Cook, 288 Ala. 704, 265 So. 2d 125 (1972). A majority of this Court, in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala. 1987), emphasized that wantonness, which requires some degree of consciousness on the part of the defendant that injury is likely to result from his act or omission, is not to be confused with negligence (i.e., mere inadvertence):
510 So. 2d at 145-46 (citations omitted.) See also, Central Alabama Electric Cooperative v. Tapley, 546 So. 2d 371 (Ala.1989). Therefore, the relevant question is whether Hughes presented substantial evidence to defeat the defendant's summary judgment motion.
A review of the facts convinces us that Hughes did not present substantial evidence from which a factfinder could infer that the defendant was guilty of "wanton conduct," as defined in Alabama case law. In reaching this conclusion, we have viewed the evidence in a light most favorable to the plaintiff, as we are required by law to do; we can find no evidence that Anderson acted in a wanton manner. In her affidavit, Anderson states that she waited at the intersection until she believed that it was safe to turn. Although Anderson may have been negligent in turning left while her view of the oncoming traffic was blocked, we do not believe that this evidence is sufficient to prove that she was guilty of "wanton conduct," as that term is defined in our cases. In other words, viewing the evidence most favorably to Hughes, we find no substantial evidence that the defendant Anderson acted "with knowledge of danger, or with consciousness, that the doing [of the act would] likely result in injury." Lynn Strickland, 510 So. 2d at 145. In addition, this Court has held on at least two previous occasions that evidence of conduct similar to Anderson's did not constitute substantial evidence of wanton conduct. See, Dorman v. Jackson, 623 So. 2d 1056 (Ala. 1993); George v. Champion Insurance Co., 591 So. 2d 852 (Ala.1991).
The trial judge properly entered a summary judgment for Anderson. Therefore, the Court of Civil Appeals erred in reversing; judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
HOOPER, C.J., and SHORES, HOUSTON, and BUTTS, JJ., concur.
KENNEDY and COOK, JJ., dissent.
*471 COOK, Justice (dissenting).
Because I believe the plaintiff presented substantial evidence of wantonness and because this case is distinguishable from Dorman v. Jackson, 623 So. 2d 1056 (Ala.1993), and George v. Champion Insurance Co., 591 So. 2d 852 (Ala.1991), I respectfully dissent.
Ms. Anderson stated in her affidavit: "I looked to see if any other vehicles were coming before I turned, but I could not see Mrs. Dansby's vehicle because other cars were stopped on the inside lane. I turned in front of Mrs. Dansby and she was unable to stop because the road was wet and slippery." I agree with the reasoning and analysis of Judge Monroe, writing for the Court of Civil Appeals:
682 So. 2d at 466.
Had the evidence in this case reflected that Ms. Anderson attempted to look and yet failed to see the oncoming car, then I would be satisfied that this was a case of negligence and not wantonness. However, the facts indicate that Mrs. Anderson's view of the oncoming traffic was blocked and, therefore, that she made the left turn without being able to ascertain whether any traffic was coming; by doing so, she caused the collision. A jury could find that the left turn was made with a conscious disregard that Ms. Hughes would be exposed to a risk of injury or harm. I believe there are differences with a distinction between this case and the Dorman and George cases. In Dorman v. Jackson, supra, 623 So. 2d at 1058, this court stated, "[T]he evidence indicates that Ms. Jackson slowed down before crossing the northbound lanes of traffic, and she stated that she merely failed to see the oncoming car." In George v. Champion Insurance Co., supra, 591 So. 2d at 854, we set out the evidence:
In both Dorman and George, the evidence indicated inattention and carelessness; therefore, the evidence did not indicate the wantonness. The factor distinguishing this case from those cases is that Ms. Anderson made her turn without any knowledge whatever as to whether a car was comingshe admitted that her vision was blocked. She did not attempt to move forward to the point where her vision would no longer be obscured, so as to be able to see whether she could safely cross the opposite lane. Because I think the evidence in this case constitutes substantial evidence of wantonness, I dissent.
KENNEDY, J., concurs. | July 26, 1996 |
57a74845-adaa-4d92-a7b9-45cebf0b3dc8 | Ex Parte Wal-Mart Stores, Inc. | 682 So. 2d 65 | 1951128 | Alabama | Alabama Supreme Court | 682 So. 2d 65 (1996)
Ex parte WAL-MART STORES, INC.
(Re Elizabeth THOMPSON v. WAL-MART STORES, INC., et al.).
1951128.
Supreme Court of Alabama.
July 26, 1996.
*66 Bradley R. Byrne, K.W. Michael Chambers and R. Scott Hetrick of McRight, Jackson, Dorman, Myrick & Moore, L.L.C., Mobile, for Petitioner.
Lamar C. Johnson of Gilmore Law Office, Grove Hill, and J. Pery Newton of Utsey, Christopher & Newton, Butler, for Respondent.
Matthew C. McDonald of Miller, Hamilton, Snider & Odom, Mobile, for Amicus Curiae Alabama Retail Association.
KENNEDY, Justice.
Wal-Mart Stores, Inc., petitions this Court for a writ of mandamus directing the trial court to modify its discovery orders, so as to protect Wal-Mart from having to produce accident and incident reports from all 86 Wal-Mart stores in Alabama for the five years preceding July 27, 1995, the date of the request.
The plaintiff, Elizabeth Thompson, was shopping at the Wal-Mart store in Thomasville on June 26, 1993, when a footlocker fell from an upper shelf and hit her on the head. She was injured and taken to a hospital, where she had X-rays and received stitches. She sued Wal-Mart on theories of negligence and wantonness.
On July 27, 1995, Thompson filed numerous discovery requests including a request for all accident and incident reports from all Wal-Mart stores in Alabama for the past five years. In response, Wal-Mart stated that the request was unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence.
The trial court entered an order on August 9, 1995, compelling production of the requested documents. The court stated in its order that if Wal-Mart could prove that production would be unduly burdensome, then it could return to court and inform the court of the problem and the court would reconsider its order. Wal-Mart produced only those accident reports compiled and maintained at the Thomasville store and made a further argument that total compliance with the trial court's order would be unduly burdensome and would not lead to the discovery of admissible evidence. Wal-Mart asked the trial court to modify its order so as to require production of only the Thomasville store reports.
January 25, 1996, the court again ordered Wal-Mart to produce the accident reports for all its Alabama stores. In response to this second order, Wal-Mart again filed a motion asking the court to reconsider that discovery order. It was denied.
On March 10, 1996, the trial court for the third time ordered Wal-Mart to produce the accident reports, and it ordered Wal-Mart to complete the production by April 17, 1996.
On March 25, 1996, Wal-Mart gave its counsel a list of all 86 Alabama stores. That same week, Wal-Mart counsel sent a letter requesting the accident and incident reports from each of the 86 stores. Wal-Mart explained thereafter to the trial court that these records were kept in the separate stores and stated that the stores were responding slowly to the requests. Two days before the court's April 17, 1996, deadline for completing discovery, Wal-Mart filed this petition for the writ of mandamus.
A writ of mandamus is a drastic and extraordinary remedy. One petitioning for the writ must show a clear legal right to the order sought; an imperative duty on the respondent to perform, accompanied by a refusal to do so; lack of another adequate remedy and properly invoked jurisdiction of the court. Ex parte Johnson, 638 So. 2d 772 (Ala.1994).
We must consider whether the trial court abused the wide discretion it is afforded in discovery matters. Rule 26(b)(1), Ala.R.Civ. *67 P., concerning discovery, states, "It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."
A trial court has very broad discretion in discovery matters, and its ruling on discovery matters will not be reversed absent a clear abuse of discretion. See Ex parte Thomas, 628 So. 2d 483 (Ala.1993); Home Insurance Co. v. Rice, 585 So. 2d 859 (Ala. 1991). "[Rule 26] contemplates a broad right of discovery. Discovery should be permitted if there is any likelihood that the information sought will aid the party seeking discovery in the pursuit of his claim or defense. Discovery is not limited to matters that would be admissible as evidence in the trial of the lawsuit." Ex parte AMI West Alabama General Hospital, 582 So. 2d 484, 485 (Ala.1991), citing Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala.1981); Ex parte Pomerantz, 590 So. 2d 903 (Ala.1991).
Wal-Mart's only attempts to comply with any of the trial court's three orders were 1) to produce the reports from the Thomasville store and 2) for its counsel to send the letter about two weeks before the final deadline for total compliance. Regarding the letter, counsel for Wal-Mart could report only that the other 85 stores were responding slowly. No documents were produced from those other stores. The trial court issued its first production order on August 9, 1995. During the discovery process the trial court held on three occasions, over a 7½-month period, that Wal-Mart had not sufficiently proven that compliance would be unduly burdensome.
We conclude that Wal-Mart has failed to show that the trial court abused its discretion in this pre-trial discovery matter.
WRIT DENIED.
SHORES, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent.
HOOPER, Chief Justice (dissenting):
I must respectfully dissent. Elizabeth Thompson was hit on the head by a small footlocker while shopping at the Wal-Mart store in Thomasville. The locker was 1½- to 2-feet square and weighed less than two pounds. She alleged that a Wal-Mart employee working in an aisle next to the one where she was shopping replaced a piece of luggage above the riser between the two aisles. According to the briefs filed in this Court, when the luggage was placed on top of the riser, it pushed the locker off the other side; it struck Ms. Thompson on the head. She was taken to a hospital, where she received stitches. Her X-rays indicated nothing abnormal.
Ms. Thompson sued Wal-Mart, alleging that it had negligently and/or wantonly caused the footlocker to fall on her head. She asked Wal-Mart to produce all accident reports from all 86 Alabama Wal-Mart stores for the past five years. Wal-Mart objected, arguing that the request was burdensome. Wal-Mart asks that discovery be limited to accidents involving items falling from the top of risers in the Thomasville store. The trial judge ordered Wal-Mart to comply with Ms. Thompson's request, and Wal-Mart filed this mandamus petition.
Ex parte Johnson, 638 So. 2d 772, 773 (Ala. 1994). See Ex parte Preston Hood Chevrolet, Inc., 638 So. 2d 842 (Ala.1994); and Ex parte Liberty National Life Ins. Co., 631 So. 2d 865 (Ala.1993).
The majority holds that Wal-Mart has no clear legal right to the relief it requests. I disagree. A trial court's discretion to control the discovery process is not unlimited, and a mandamus petition is the proper means of review to determine whether the trial court *68 has abused its discretion. Ex parte Thomas, 628 So. 2d 483, 485 (Ala.1993).
When a trial court fails or refuses to limit discovery to information relevant to the issues of the case or to information reasonably calculated to lead to the discovery of admissible evidence pertaining to the issues of the case, a writ of mandamus should issue to compel the trial court to so limit discovery. Ex parte Mobil Oil Corp., 613 So. 2d 350, 352 (Ala.1993). A primary goal of the discovery rules is to ensure "the just, speedy and inexpensive determination" of civil actions, Ala. R.Civ.P. 1(c) (emphasis added), and another goal is to cause no "undue burden or expense." Ala.R.Civ.P. 26(c).
Discovery is not and never has been free of expense to the parties in a lawsuit. Therefore, trial courts, when compelling production, must consider the costs of complying with discovery requests and should make a commonsense determination as to which matters are admissible or will likely lead to the discovery of admissible evidence. Moreover, I do not think that an appeal at the end of a case is an adequate remedy for dealing with improper discovery rulings, because delay costs the parties unrecoverable expenses.
The trial court allowed Ms. Thompson to discover all accident reports for the past 5 years from all 86 Wal-Mart stores in Alabama. Ms. Thompson alleges that Wal-Mart negligently and/or wantonly caused the footlocker to fall on her head by placing a piece of luggage on top of the riser between her aisle and the next aisle. It appears that Ms. Thompson hopes to prove that the operators of Wal-Mart stores in Alabama have engaged in a statewide pattern of injuring persons in their stores by negligently and wantonly stacking their merchandise. Perhaps she desires to prove a statewide pattern and practice of wanton stacking. Such proof would allow Ms. Thompson to try for the Alabama punitive damages jackpot. In addition, burdensome discovery placed upon Wal-Mart might force it to settle a case it would not otherwise settle.
The broad rules of discovery "should not be misapplied so as to allow fishing expeditions in discovery. Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and produce a variety of information which does not reasonably bear upon the issues in the case." Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir.1992); and see Ex parte Darring, 242 Ala. 621, 7 So. 2d 564 (1942) (fishing expeditions through books of account, as well as fishing expeditions in general, are not to be tolerated). I think Ms. Thompson's request for all accident reports for the past 5 years from all 86 Wal-Mart stores in Alabama is such a fishing expedition.
I suppose the following hypothetical scenario is something along the lines of what a plaintiff like Ms. Thompson might hope to prove:
Have we really come to the point that we see a nefarious purpose behind every accident, every injury? I think Wal-Mart has a clear legal right to not be subjected to these discovery requests, which appear to me to be burdensome and to amount to a fishing expedition. These requests are not likely to produce admissible evidence or to lead to the discovery of admissible evidence. In fact, the plaintiff's wantonness claim borders upon the frivolous. Therefore, I think mandamus relief is appropriate. Accordingly, I would grant the mandamus petition and direct the trial judge to modify the discovery request so as to limit discovery to the accident reports relating to merchandise falling from risers at the Thomasville store.
[1] A Company X board member stated at the board meeting: "Look, we save $485,000. According to our legal department, the most it would cost us in damages and legal fees is $300,000. That means that we will save at least $185,000."
[2] The callousness of the board members is displayed in the following comments: A board member stated, "What's the worst thing that can happen from building smaller stores? I suppose a couple of customers might bump into each other with shopping carts." Another board member said: "People get injured every day; its not our fault if something falls off a shelf." | July 26, 1996 |
fb04cd02-0b89-44d3-96fc-1d19794610a8 | Sheffield v. Andrews | 679 So. 2d 1052 | 1941693 | Alabama | Alabama Supreme Court | 679 So. 2d 1052 (1996)
Willie E. SHEFFIELD
v.
Lillian P. ANDREWS and Minnie May Pugh.
1941693.
Supreme Court of Alabama.
April 12, 1996.
Rehearing Overruled July 19, 1996.
Opinions Dissenting from Overruling of Rehearing July 19, 1996.
Edward P. Turner, Jr. and Halron W. Turner of Turner, Onderdonk, Kimbrough & Howell, P.A., Chatom, for appellant.
Wyman O. Gilmore, Jr. and Lamar C. Johnson of Gilmore Law Office, Grove Hill, for appellees.
COOK, Justice.
Willie E. Sheffield appeals from a judgment awarding Lillian P. Andrews, individually, and as attorney in fact for her sister, Minnie May Pugh, who is incapacitated, $10 in compensatory damages and $1,000,000 in punitive damages on Andrews's claim that Sheffield and Andrews's former attorney, James Tucker, were part of a conspiracy to defraud her and her sister out of their property. Andrews, who was 91 years old at the time, alleges that Sheffield paid Tucker $15,000 to obtain title to property owned by Ms. Andrews and her sister and that Tucker did so by misrepresenting to Ms. Andrews, who had poor eyesight, the content of certain documents signed by her. Those documents purported to transfer Andrews's property interest to Sheffield. After Andrews signed the documents, she cut timber on the property twice and executed a hunting lease on the property. Tucker, in an attempt to stop the timber cuttings, informed Andrews that she would have tax problems if she continued to cut timber; Sheffield attempted to circumvent the hunting lease by offering to purchase it from the lessee for $10,000.
*1053 In addition, Tucker, unknown to Andrews, added to a will he prepared for Andrews language stating that upon Andrews's death, the property, valued at well over $1,000,000, would be sold to Sheffield for $250,000 or $500,000, depending on the interest owned by Ms. Andrews. The price was dependent on whether Andrews, at the time of her death, had inherited the interest of her sister, Ms. Pugh. Sheffield, thereafter, deposited $428,000 with Tucker for payment to Andrews's estate upon her death. Tucker put $400,000 in a certificate of deposit in trust for Sheffield and apparently spent the remaining $28,000. Andrews did not know about the money and never received any benefit therefrom. Upon learning that Sheffield claimed title to her property based on the documents signed by her, Andrews sued, seeking to quiet title to the property and seeking damages, alleging that Sheffield and Tucker were guilty of fraud.
The jury returned a verdict of $10 in compensatory damages and $2,000,000 in punitive damages. Following a Hammond hearing, the trial court reduced the punitive damages award to $1,000,000. On appeal, Sheffield contends that Andrews should not have been permitted to "rescind" the alleged contract and at the same time collect punitive damages for fraud. He claims that these remedies are inconsistent and that Andrews should be forced either to rescind the agreement and collect no punitive damages or to affirm the contract and be allowed to seek punitive damages. He further argues that the verdict should have been reduced by significantly more than $1,000,000, because, he argues, his net worth is only $720,000. We disagree with each of Sheffield's contentions and affirm the judgment of the trial court.
Liberty National Life Insurance Co. v. Jackson, 603 So. 2d 1005, 1007 (Ala.1992). The question here is whether the remedies in this case are, in fact, inconsistent, as argued by Sheffield; in other words, we must decide whether Andrews can collect damages for fraud and rescind the real estate conveyance. For the following reasons, we conclude that these remedies are not inconsistent.
In Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 66, 311 So. 2d 312, 318 (1975), this Court held that "where one rescinds a contract induced by fraud and recovers even nominal damages, then in an appropriate case he may also recover punitive damages." The Court, quoting with approval Ward v. Taggart, 51 Cal. 2d 736, 336 P.2d 534 (1959), stated:
Mid-State Homes, Inc. v. Johnson, 294 Ala. at 66, 311 So. 2d at 318. Andrews contends that the facts of this case bring it within the holding in Mid-State, supra. In particular, she argues that forcing her to elect between remedies would, in effect, allow Sheffield to perpetrate fraud and "`run no risk of liability to [his victim, Andrews] beyond that of returning what [he had] wrongfully obtained.'" Mid-State Homes, Inc. v. Johnson, 294 Ala. at 66, 311 So. 2d at 318, quoting Ward v. Taggart, 51 Cal. 2d 736, 336 P.2d 534.
The documents purporting to transfer the property from Andrews to Sheffield were void because of the fraud of Sheffield and Tucker. See Cumberland Capital Corp. *1054 v. Robinette, 57 Ala.App. 697, 331 So. 2d 709 (1976), wherein the court stated:
331 So. 2d at 713. In finding for Andrews on the fraud count, the jury determined that because of Sheffield and Tucker's fraud, there was no agreement between Andrews and Sheffield for the purchase of her property. Thus, the remedy of voiding the "agreements" is not inconsistent with an award of punitive damages for the fraud perpetrated by Sheffield on Andrews.
Finally, Sheffield contends that the trial court should have remitted the punitive damages award by more than $1,000,000 because, he claims, his estate in not large enough to pay such a significant verdict. Should he be required to do so, he claims, he will be financially destroyed. The trial judge, in his order remitting the verdict by $1,000,000, stated:
C.R. at 549-54. In considering Sheffield's argument that the verdict should have been reduced by substantially more than $1,000,000, we note that Sheffield presented evidence tending to show that his estate was valued at only $720,000. The trial court, however, did not accept the value Sheffield placed on his assets and, in its order, found that Sheffield had, in fact, underestimated those assets by 50%. In addition, the trial court did not believe testimony offered by Sheffield with regard to $500,000 that had been on deposit when the judgment was entered. That testimony was as follows:
R.T. at 900-03. Sheffield testified that $500,000 of his money had been "lost or stolen" while he was on a gambling junket between the day the judgment was entered and the day he filed his affidavit. The trial court did not believe Sheffield's explanation of the whereabouts of the missing funds.
The record contains evidence that Sheffield attempted to hide his assets from the court by transferring assets to family members or by suggesting that the assets had been "lost or stolen"; there is evidence that Sheffield stood to gain much from his fraudulent activities had they not been discovered; and there is evidence that Sheffield paid Tucker $15,000 to obtain title to the property for him, knowing that Ms. Andrews knew nothing of the alleged conveyance of her land. The evidence was sufficient to sustain the punitive damages award as remitted.
AFFIRMED.
HOOPER, C.J., and ALMON, SHORES, HOUSTON, KENNEDY, INGRAM, and BUTTS, JJ., concur.
COOK, Justice.
APPLICATION OVERRULED.
ALMON, SHORES, HOUSTON, KENNEDY, and INGRAM, JJ., concur.
HOOPER, C.J., and MADDOX and BUTTS, JJ., dissent.
MADDOX, Justice (dissenting).
I agree with Justice Butts's comments in his dissent, except that I would remit the punitive damages award to $250,000. I believe the award of $1,000,000 in punitive damages is "grossly excessive" and thus violates the defendant's right to due process. See, BMW of North America, Inc. v. Gore, 517 U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996).
HOOPER, C.J., concurs.
BUTTS, Justice (dissenting).
I would grant Willie Sheffield's application for rehearing to review the issue whether the trial court's remittitur of the punitive damages award against Sheffield from $2,000,000 to $1,000,000 was sufficient to have the award comport with the requirements of due process. The jury found that Sheffield's misconduct *1057 was sufficient to impose the penalty of punitive damages, and I agree that punitive damages are warranted. However, after additional study, I have concluded that a further remittitur of the punitive damages award is required. Although the exact amount of Sheffield's net worth is highly disputed, even if it is as great as the plaintiff claims, $1,220,300, then I must conclude that the $1,000,000 punitive damages award "destroys" rather than "stings." See Green Oil Co. v. Hornsby, 539 So. 2d 218, 222 (Ala.1989). I believe a punitive damages award of $350,000 would accomplish "society's goals of punishment and deterrence," id.; thus, I would further remit the award to that amount. | July 19, 1996 |
65cf07fd-dfc4-444c-801f-5b2c9690ebd7 | Ex Parte Americold Compressors Co. | 684 So. 2d 140 | 1951188 | Alabama | Alabama Supreme Court | 684 So. 2d 140 (1996)
Ex parte AMERICOLD COMPRESSORS COMPANY.
(Re AMERICOLD COMPRESSORS COMPANY v. Nancy STRICKLIN).
1951188.
Supreme Court of Alabama.
October 18, 1996.
*141 Stephen D. Christie and William Perry Webb of Porterfield, Harper & Mills, P.A., Birmingham, for Petitioner.
Michael A. Stewart, Sr., Cullman, for Respondent.
SHORES, Justice.
We granted the Americold Compressors Company's petition for the writ of certiorari to consider whether the Court of Civil Appeals erred in affirming the trial court's reopening of a 1991 final judgment in a workers' compensation case to allow Nancy Stricklin's 1995 claim for future medical expenses. We reverse and render a judgment for Americold.
In December 1989, Stricklin sued Americold, seeking workers' compensation benefits for permanent partial disability, as well as for past and future medical treatment, based on a work-related injury she had suffered while employed as a spot welder with the company. Following a trial on the merits in January 1991, Circuit Judge Jack C. Riley entered a final judgment, which read as follows:
At the time of this final order, our courts followed Davis v. City of Tuscaloosa, 494 So. 2d 643 (Ala.Civ.App.1986), in regard to future medical expenses. In that case the Court of Civil Appeals held that in cases in which a trial court found that a workers' compensation plaintiff had suffered no permanent disability as the result of the on-the-job injury, he or she was precluded as a matter of law from recovering any future medical benefits. 494 So. 2d at 645. Thus, Judge Riley's finding that the plaintiff had fully recovered from the original injury and that she could be gainfully employed was a determination that no future medical expenses were due to her.
In April 1995, the Court of Civil Appeals expressly overruled its decision in Davis v. City of Tuscaloosa, in the case of Robbins Tire & Rubber Co. v. Byrd, 659 So. 2d 672 (Ala.Civ.App.1995), holding that a workers' compensation plaintiff found to have sustained a compensable injury is entitled to future medical benefits, regardless of whether he or she suffers from any permanent disability as the result of the on-the-job accident.
In May 1995, Stricklin filed a "Motion to Enforce Judgment." In it she stated:
Judge Riley, who had originally heard the case on the merits, had retired by that time. Judge H. Frank Brunner held a hearing on the motion and ordered as follows:
The Court of Civil Appeals affirmed the trial court's holding, under the following reasoning:
Americold Compressors Co. v. Stricklin, 684 So. 2d 139 (Ala.Civ.App.1996).
Americold contends that this holding of the Court of Civil Appeals is in direct conflict with this Court's precedent, because, Americold says, it sanctions a collateral attack on a valid final judgment entered four years earlier and allows a heretofore unsuccessful plaintiff to relitigate an issue previously decided against her. We agree. The trial court had no jurisdiction to disturb a valid judgment that had become final and on which the appeal time had expired long before the substantive case law in regard to future medical expenses in workers' compensation cases changed. The question of jurisdiction was not addressed by the Court of Civil Appeals, which affirmed the judgment of the trial court, citing Ex parte Tuscaloosa County, 522 So. 2d 782 (Ala.1988), and Jones v. Pickens County Health Care, 589 So. 2d 754 (Ala. Civ.App.1991).
*144 In Ex parte Tuscaloosa County, the issue before this Court was whether an employee's failure to sue within the statutorily prescribed one-year limitations period for a workers' compensation claim barred his or her right to sue for accrued medical expenses. This Court held that an injured employee's right to sue for accrued medical expenses, as authorized by Ala.Code 1975, § 25-5-77, is independent of the employee's right to sue for workers' compensation benefits, and thus that such a claim is not time-barred merely because the injured employee has not sued within the statutorily prescribed period of limitations for a compensation claim. 522 So. 2d at 783-84. In Jones v. Pickens County Health Care, a workers' compensation case, the Court of Civil Appeals stated that because the trial court had found that Jones had suffered work-related injuries, she was automatically entitled to future medical benefits under § 25-5-77. Future medical expenses are recoverable under § 25-5-77 if they are related to the injury, are "reasonable" and "necessary," and are obtained with the authorization of the employer. 589 So. 2d at 756. In neither case did this Court or the Court of Civil Appeals sanction the reopening of a valid final judgment.
When Ms. Stricklin sued in December 1989, she was exercising her rights under Ex parte Tuscaloosa County and § 25-5-77 in seeking both workers' compensation benefits and medical expenses. In fact, Judge Riley's order noted that "there may be some outstanding medical bills that should be paid by the defendant." In his final order, Judge Riley found that Ms. Stricklin had suffered no permanent disability as the result of an on-the-job injury. Under this holding, she was precluded, as a matter of law, from recovering any future medical expenses. Davis v. City of Tuscaloosa, 494 So. 2d 643 (Ala.Civ.App.1986), and Hammons v. Chesebrough-Pond's, Inc., 516 So. 2d 713, 715 (Ala. Civ.App.1987).
Judge Riley's order was final, it was not appealed, and it cannot now be reopened by the filing of a so-called "motion to enforce judgment." Cornelius v. Green, 477 So. 2d 1363 (Ala.1985). The time has long since passed for the filing of a motion to amend the final judgment, pursuant to either Rule 59(e) or Rule 60(b), Ala. R. Civ. P.
The principles of res judicata, collateral estoppel, and the finality of judgments prohibit a trial court from disturbing a final judgment. Louisville & N.R.R. v. Atkins, 435 So. 2d 1275 (Ala.1983); State v. Morrison Cafeterias Consolidated, Inc., 487 So. 2d 898 (Ala.1985). In Louisville & N.R.R. v. Atkins this Court held that the doctrine of res judicata would be violated if the law as it evolves were made retroactive to reopen, for another trial, matters that had been laid to rest under theories of liability existing at the time they were tried must not be reopened. 435 So. 2d at 1279. This Court, in State v. Morrison Cafeterias, citing Farrior v. New England Mortgage Security Co., 92 Ala. 176, 9 So. 532 (1891), stated that where a party has acted upon the law as clearly declared by a judicial decision, that party will be protected even if the decision is thereafter overruled. Matters laid to rest under theories of liability existing at the time the matters were tried must not be reopened. State v. Morrison Cafeterias, supra, 487 So. 2d at 903. To reopen such matters not only would conflict with settled Alabama law, but also would defeat public policy considerations: "`[t]he quieting of litigation; the public peace and repose; respect for judicial administration of the law, and confidence in its reasonable certainty, stability and consistency.' Bibb v. Bibb, 79 Ala. 437, 444 (1885)." Stallworth v. Hicks, 434 So. 2d 229, 230 (Ala.1983).
For the reasons stated above, the judgment of the Court of Civil Appeals is reversed and a judgment is rendered for Americold.
REVERSED AND JUDGMENT RENDERED.
HOOPER, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur. | October 18, 1996 |
d66255bd-f9dd-4c4a-8142-c1e191c1c4e1 | Canal Indem. Co. v. Burns | 682 So. 2d 399 | 1941354 | Alabama | Alabama Supreme Court | 682 So. 2d 399 (1996)
CANAL INDEMNITY COMPANY
v.
Mike BURNS, et al.
1941354.
Supreme Court of Alabama.
August 2, 1996.
Robert R. Kracke of Kracke, Thompson & Ellis, P.C., Birmingham, for Appellant.
Philip E. Miles of Floyd, Keener, Cusimano & Roberts, P.C., Gadsden, for Appellee.
KENNEDY, Justice.
Following an automobile accident, Canal Indemnity Company sued its insured, Mike Burns, individually and d/b/a First Class Auto Sales; and Roy Burns, for a judgment declaring its obligations under the uninsured motorist provisions of a garage liability policy issued to First Class Auto Sales ("First Class"). The trial court entered a judgment declaring that Canal owed Roy Burns uninsured motorist coverage in an amount not to exceed $60,000.[1]
Mike Burns owns and operates First Class, which is in the business of buying salvaged cars and repairing them for resale. Roy Burns is the father of Mike Burns. Roy Burns works for First Class, running errands and picking up parts used in the repair of the cars. In performing his duties, he drives cars being held for resale on the First Class lot.
Roy Burns was involved in an accident while driving one of the used cars from the *400 First Class lot. He was hit head-on by a motor vehicle driven by an uninsured motorist, and he suffered injuries resulting from the collision.
Roy Burns and Mike Burns state that, at the time of the accident, Roy had gone to look for used parts at the direction of Mike Burns; that Roy was to go to a salvage yard and purchase parts to be used in the repair of the car he was driving; that Roy went to the salvage yard and then on the way back stopped by the house of a friend (who was not at home); and that after leaving the friend's house he was hit by the uninsured motorist. At the time of the accident, Mike Burns had three vehicles for sale on the First Class lot.
Roy Burns had his own uninsured motorist coverage with Allstate Insurance Company, with policy limits of $20,000 per person and $40,000 per accident. He had insured two personal vehicles under this one contract. After correspondence between Canal's adjuster and Allstate, the insurers agreed that Allstate would be the primary carrier and that Canal would be the excess carrier. Roy burns made a claim on his Allstate contract, and Allstate tendered the policy limits of $40,000.
First Class's policy with Canal provided uninsured motorist coverage of $20,000 per person and $40,000 per accident. The Canal policy covered all three vehicles on the lot. After settling the Allstate claim, Roy filed a claim under the Canal policy for uninsured motorist benefits. Roy claimed that his injuries entitled him to damages exceeding the amount tendered by Allstate; he claimed benefits up to the amount of his total damages by stacking the three coverages under the Canal contract.
This is an insurance stacking case. In Sullivan v. State Farm Mutual Automobile Insurance Co., 513 So. 2d 992 (Ala.1987), this Court, citing State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So. 2d 95 (1974), held that the classification of "insured" under uninsured motorist vehicle coverage must be as broad as the definition of "insured" under the bodily injury liability coverage (primary liability). Also, in Lambert v. Liberty Mutual Insurance Co., 331 So. 2d 260 (Ala.1976), Justice Jones wrote in his special concurrence:
331 So. 2d at 266. Section IV of the Canal policy, "Persons Insured," which is part of the primary liability provisions, states that "[e]ach of the following is an insured under this insurance to the extent set forth below:
The "uninsured motorist coverage" provision of the policy issued by Canal to First Class provided as follows:
It is undisputed that at the time of the accident Roy Burns was an employee of Mike Burns d/b/a First Class Auto Sales. Pursuant to the holdings of this Court in Reaves *401 and Lambert and the Canal primary liability provisions, Roy Burns as an employee must be extended uninsured motorist coverage under the Canal policy. As an employee, Roy Burns is designated as an "insured" under the liability provisions of the Canal policy. Contrary to what Canal argues, whether Roy Burns owned the vehicle he was driving or paid any of the premiums for the insurance is of no consequence. See, White v. Georgia Casualty & Surety Insurance Co., 520 So. 2d 140 (Ala.1987).
In White, Mr. White was injured while driving his employer's truck in the line and scope of his duties. The Court held that White, as an employee and as an insured in the primary liability portion of his employer's fleet insurance policy was entitled to stack coverage under the uninsured motorist provisions. Mike Burns and Roy Burns testified that Roy was "on the business" of First Class when the accident occurred. Roy was returning from searching for auto parts to be used in repairing cars for resale at First Class. Applying the rationale of White, supra, we agree with the trial court that Roy Burns can stack the Canal uninsured motorist coverage because the evidence supports a finding that he is within the definition of an "insured" under the terms of the Canal uninsured motorist coverage provisions.
It is well settled that where the insured's loss exceeds the limits of one uninsured motorist policy, the insured may stack the coverages provided by other uninsured motorist policies to cover up to the amount of damages required to compensate for the actual injury sustained. State Farm Mutual Automobile Insurance Co. v. Fox, 541 So. 2d 1070 (Ala.1989). Ala.Code 1975, § 32-7-23(c), states:
Roy Burns asserts that the $40,000 tendered under the Allstate contract will not cover the amount of damages he would be entitled to as compensation for actual harm sustained and, therefore, he seeks to recover under the Canal uninsured motorist provision.
The statute limits stacking to the primary coverage plus coverage for two additional vehicles. In Fox, supra, this Court held:
541 So. 2d at 1072. When statutory language is unequivocal and unambiguous, it is to be given its plain, clear, and ordinary meaning. Mann v. City of Tallassee, 510 So. 2d 222 (Ala.1987). The statute does not prevent stacking under two or more separate contracts of insurance. The statutory language clearly imposes a "limitation" only on the number of uninsured motorist coverages that can be stacked within one contract of insurance. Fox and § 32-7-23(c) do not prohibit the stacking of uninsured motorist coverages provided under separate multi-vehicle contracts; they only limit stacking to a total of three coverages under each separate contract of insurance. The language of § 32-7-23(c) cannot be interpreted to allow stacking only under one multi-vehicle insurance contract.
In American Economy Insurance Co. v. Thompson, 643 So. 2d 1350 (Ala.1994), American Economy insured for Thompson's employer two vehicles under one contract and three vehicles under a separate contract. Thompson was involved in an accident with an uninsured motorist while driving a vehicle owned by his employer in the line and scope of his duties. American Economy tendered to Thompson the policy limits under the contract *402 covering two vehicles; we held that, pursuant § 32-7-23(c), Thompson was entitled to stack the coverages under the separate contract covering three vehicles. Furthermore, this Court has held that exceptions to insurance coverage must be narrowly construed so as to provide the maximum coverage available. Cotton States Mutual Insurance Co. v. Michalic, 443 So. 2d 927 (Ala. 1983).
Canal asserts that by virtue of the "other insurance" endorsement and the "limits of liability" clause, Roy Burns is not entitled to recover under the Canal policy. In the alternative, Canal argues that, at most, he can recover $20,000, the difference between what he received from Allstate ($40,000) and the maximum $60,000 allowed under the statute. The "limits of liability" clause states:
The "other insurance" endorsement states:
This Court has consistently held that these "other insurance" and "limits of liability" clauses are ineffective to prevent stacking of coverages and are in derogation of well-settled Alabama law. General Mutual Insurance Co. v. Gilmore, 294 Ala. 546, 319 So. 2d 675 (1975).
In light of the case law and our interpretation of § 32-7-23(c), discussed above, we affirm the trial court's holding that Canal owes uninsured motorist benefits to Roy Burns in an amount up to $60,000, but not exceeding the amount required to compensate for injury sustained.
AFFIRMED.
SHORES and COOK, JJ., concur.
HOOPER, C.J., and MADDOX, J., concur in the result.
[1] The Canal insurance contract provides uninsured motorist coverage of $20,000. Three vehicles were covered under the Canal contract at the time of the accident. The $60,000 figure is derived by multiplying $20,000 x 3 vehicles; see Ala.Code 1975, § 32-7-23(c). | August 2, 1996 |
43478eae-93e5-4c52-8b58-c64266eb10cd | DISCTRONICS LTD v. Disc Mfg., Inc.(Three Cases) | 686 So. 2d 1154 | 1941401, 1941451, 1941559, 1941623 | Alabama | Alabama Supreme Court | 686 So. 2d 1154 (1996)
DISCTRONICS LIMITED, et al.
v.
DISC MANUFACTURING, INC., and Quixote Corporation.
DISCTRONICS LIMITED, an Australian Corporation, et al.
v.
DISC MANUFACTURING, INC., and Quixote Corporation.
DISC MANUFACTURING, INC., and Quixote Corporation.
v.
DISCTRONICS LIMITED, et al.
DISCTRONICS LIMITED, et al.
v.
DISC MANUFACTURING, INC., and Quixote Corporation.
1941401, 1941451, 1941559 and 1941623.
Supreme Court of Alabama.
September 13, 1996.
Rehearing Denied November 22, 1996.
*1156 Gary C. Huckaby, G. Rick Hall and Carolyn Reed Douglas of Bradley, Arant, Rose & White, Huntsville, for Appellants/Cross Appellees Disctronics Limited.
Roderic G. Steakley, Charles R. Driggars and Melissa W. Larsen of Sirote & Permutt, P.C., Huntsville, for Appellees/Cross Appellants Disc Manufacturing, Inc. and Quixote Corporation.
HOUSTON, Justice.
This is the second time this controversy has come before this Court. The parties have not changed since the resolution of the first appeal. The appellants and cross-appellees are the defendants in the underlying action:
Massey v. Disc Mfg., Inc., 601 So. 2d 449, 450 (Ala.1992). The appellants, except for MTI, will be referred to collectively as the "Disctronics Group" in this opinion, just as they were in our first opinion. The appellees/cross-appellants, the plaintiffs below, are Quixote Corporation and Disc Manufacturing, Inc. (a wholly owned subsidiary of Quixote Corporation). The appellees will be hereinafter referred to collectively as "the plaintiffs."
*1157 The first appeal in this matter, Massey, 601 So. 2d 449, concerned a single issue, whether the trial court had erred in entering a preliminary injunction against the Disctronics Group based upon a theory of usurpation of corporate opportunity. In that opinion, this Court set out the facts underlying the present dispute:
Massey, 601 So. 2d at 450-53.
This Court set aside the preliminary injunction, holding it improper because:
Massey, 601 So. 2d at 459. The reason this Court held that a cause of action for usurpation of a corporate opportunity could not be maintained in this case, as a matter of law, was that the undisputed facts showed that the opportunity to purchase MTI was not a corporate opportunity of DMI. "The opportunity presented by MTI was created by the Disctronics Group's relationship with Mitsubishi that had been established long before the Disctronics Group even began negotiations to buy [LaserVideo]." Id. at 457-58. Therefore, this Court found that "[t]he opportunity allegedly usurped from DMI was never DMI's opportunity and could not be so characterized." Id. at 459.
After the case was remanded, the trial judge eventually entered a summary judgment for the Disctronics Group as to a number, but not all, of the plaintiffs' claims. The trial judge, also, dismissed 7 of the Disctronics Group's 12 counts stated in the counterclaim, without specifying the grounds for the dismissal. The summary judgment was made final pursuant to Rule 54(b), Ala. R.Civ.P. Later, the Disctronics Group moved, pursuant to Rule 5, Ala.R.App.P., to allow an immediate appeal of any interlocutory portions of the trial judge's dismissal order. The trial judge granted the Rule 5 motion, and this Court agreed to hear the interlocutory-appeal portions of the Disctronics Group's appeal.
The plaintiffs, Quixote Corporation and Disc Manufacturing, Inc., now appeal from the trial judge's order dismissing Counts I, II, and IV of their first amended complaint. Count I alleged that defendants "Disctronics Limited, Disctronics Australia Limited, Donovan, Massey, Mackie and Adams breached their fiduciary duties to [Disctronics Manufacturing, Inc.], committed corporate waste, and misappropriated [Disc Manufacturing, Inc.'s] corporate opportunities." In Count II, the plaintiffs alleged that defendants "Disctronics Limited, Disctronics Australia Limited, Massey, Mackie, Donovan and Adams breached their fiduciary duties to Quixote[, a minority shareholder in DMI], committed corporate waste, and misappropriated DMI's corporate opportunities." Count IV alleged that the various defendants conspired to tortiously interfere with DMI's contractual and business relations and also conspired "to cause and aid [Disctronics Limited, Disctronics Australia Limited, Massey, Mackie, Donovan, and Adams] in the breach of their fiduciary duties to DMI."
The trial judge did not state his reasoning in the original order dismissing Counts I, II, and IV of the plaintiffs' first amended complaint, but in a later order denying the plaintiffs' "motion for reconsideration" the trial judge stated the basis for the summary judgment:
If the plaintiffs' claims contained in Counts I, II, and IV of the first amended complaint were based solely upon allegations of usurpation of corporate opportunity as regards the opportunity presented by MTI, the trial judge's reasoning would be totally correct. Our decision in the first appeal clearly disposed of any and all of the plaintiffs' claims that are premised upon the theory that the defendants are liable for usurpation of corporate opportunity regarding the Disctronics Group's purchase of MTI. However, Counts I, II, and IV also seek relief based upon alleged wrongful conduct said to have occurred after the Disctronics Group purchased *1160 MTI. The issue whether the post-MTI-purchase conduct of the Disctronics Group defendants breached any fiduciary duty legitimately owed to the plaintiffs' corporations was not before this Court on the first appeal, and, therefore, was not decided. See Cooper v. Bailey, 288 Ala. 84, 86, 257 So. 2d 332, 333 (1972) ("This court does not decide questions which are unnecessary to the disposition of a case on appeal.").
If our first opinion is not read in the context of the single issue presented to this Court in the first appeal, then the language in it would seem to be very broad. However, because the undisputed facts showed that the MTI opportunity clearly arose before the time of the 1989 Work-Out Agreement, it was not necessary for this Court to fully consider the nature of the post-Work-Out Agreement relationship of the parties to this action.[1] Our opinion did not hold that dominant majority shareholders, who are not sole shareholders, do not, under Delaware law, the law applicable to the plaintiffs' breach of fiduciary duty claims, owe fiduciary duties to the corporations that they control.[2] Delaware law clearly establishes that such shareholders do owe certain fiduciary duties by virtue of their status as dominant shareholders and the consequent potential for abuse. See, e.g., Sinclair Oil Corp. v. Levien, 280 A.2d 717 (Del.1971). Not only is it clearly established under Delaware law that "[a] shareholder that owns a majority interest in a corporation, or exercises actual control over its business affairs, occupies the status of a fiduciary to the corporation," but it is also clearly established that such a shareholder also "occupies the status of a fiduciary to ... [the corporation's] minority shareholders." In re MAXXAM, Inc., 659 A.2d 760, 771 (Del.Ch.1995) (citing Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110, 1113 (Del.1994)). Furthermore, no citation to authority is even necessary to support the proposition that a corporation's officers and board of directors owe certain fiduciary duties to the corporation, under any state's corporation law.
The claims contained in Counts I, II, and IV of the plaintiffs' complaint were not preempted by this Court's decision in Massey v. Disc Mfg., Inc., 601 So. 2d 449 (Ala. 1992), to the extent that those claims seek redress for alleged post-MTI-purchase breaches of fiduciary duty by DMI directors and corporate officers and to the extent that those claims seek redress on behalf of DMI and Quixote for alleged post-MTI-purchase breaches of fiduciary duty by DMI's majority shareholder. Therefore, the summary judgment is reversed as to the claims contained in Counts I, II, and IV.
The Disctronics Group appeals from the dismissal of 7 of their 12 counterclaim counts. The counts dismissed were: (1) Count I, which sought relief based upon a breach of an implied covenant of good faith and fair dealing; (2) Count II, which sought relief based upon an economic duress theory; (3) Count IV, which sought relief based upon a theory of unjust enrichment; (4) Count VII, which sought relief based upon an account and account stated theory; (5) Count VIII, which sought relief based upon a theory of money had and received; (6) Count IX, which sought relief under an unfair competition theory; and (7) Count XI, which sought relief for an alleged breach of fiduciary duty by a director of DMI who was associated with Quixote and an alleged seizure of corporate opportunity by Quixote.
*1161 The trial court failed to state the reasoning supporting, or even the grounds for, its dismissal of these counterclaim counts. After the Disctronics Group filed its counterclaim, the plaintiffs initially argued that the defendants had failed to state a valid claim as to any of the claims dismissed, relying on Rule 12(b)(6), Ala.R.Civ.P. Subsequently, the plaintiffs filed a summary judgment motion, arguing, first, that Alabama courts lack the subject matter jurisdiction to decide Counts I, II, IV, and VIII of the counterclaim, and, second, that the claims contained in Counts I, II, IV, and XI had been released. Therefore, the question before this Court is whether the trial court's dismissal of each counterclaim count was proper, based on any of the dismissal arguments that the plaintiffs made as to that count.
We will address the plaintiffs' jurisdictional argument first. The plaintiffs argue that exclusive subject matter jurisdiction over disputes arising out of or related to the Work-Out Agreement was vested in Illinois state courts by the Work-Out Agreement itself, or, in the alternative, by the "Agreed Final Order" issued by the Circuit Court of Cook County, Illinois, which set aside the March 21, 1989, settlement agreement and, pursuant to the Work-Out Agreement, dismissed Quixote Corporation's original claims.
We need not determine whether the Work-Out Agreement language the plaintiffs cite can be read to vest in Illinois state courts exclusive jurisdiction to deal with disputes arising under the Work-Out Agreement, because contractual forum selection clauses are not enforceable in Alabama's courts. In Redwing Carriers, Inc. v. Foster, 382 So. 2d 554, 556 (Ala.1980), this Court held:
The question whether the Agreed Final Order of the Cook County Circuit Court prevented the trial court from validly taking jurisdiction and deciding the defendants' counterclaims raises a much more difficult question, though, because of the interplay of the Full Faith and Credit Clause of the United States Constitution, Article IV, § 1.
The Full Faith and Credit Clause is basically a constitutional rule of res judicata. It requires that a state court respect the final judgments issued by the courts of other states. In other words, "[t]he general rule is that this command requires the judgment of a sister State to be given full, not partial, credit in the State of the forum." New York v. Halvey, 330 U.S. 610, 614, 67 S. Ct. 903, 906, 91 L. Ed. 1133 (1947). But "[f]or a judgment to be absolutely entitled to extrastate recognition under the full faith and credit clause, it must be final, in the sense that it is not subject to being reopened and modified." Robert A. Leflar et al., American Conflicts Law, § 83, p. 247 (4th ed. 1986). Whether a judgment is final and therefore entitled to res judicata treatment under the Full Faith and Credit Clause is determined according to "the local law of the state of rendition." Restatement (Second) of Conflict of Laws, § 107 (1971).
The Agreed Final Order entered by the Cook County, Illinois, Circuit Court states:
Because the Agreed Final Order was entered by an Illinois court, we must look to Illinois law to determine if it is final for purposes of the Full Faith and Credit Clause. The Illinois Appellate Court stated in Kandalepas v. Economou, 269 Ill.App.3d 245, 252, 206 Ill. Dec. 538, 543, 645 N.E.2d 543, 548 (1994):
(Citations omitted.) See also People v. Joliet Trust & Savings Bank, 315 Ill.App. 11, 42 N.E.2d 90 (1942). Therefore, according to Illinois law, the Agreed Final Order is not a final judgment entitled to res judicata effect, but is, instead, a contract between the settling litigants; therefore, the Full Faith and Credit clause does not require that the Agreed Final Order be enforced to any greater extent than it would be if it were simply a contract.[3] As already stated, Alabama courts do not enforce contractual forum selection clauses. See, e.g., Redwing Carriers, Inc. v. Foster, supra.
Before considering whether any of the Disctronics Group's counterclaims were released, we consider whether those claims were due to be dismissed under Rule 12(b)(6), Ala.R.Civ.P., for failure to state a claim. In Rice v. United Ins. Co. of America, 465 So. 2d 1100 (Ala.1984), this Court held:
465 So. 2d at 1101.
All parties agree that under Alabama's choice of law rules Illinois law is the correct law to be applied to Counts I, II, IV, VII, and VIII of the defendants' counterclaim. Our question then becomes whether any of those counterclaims "sufficiently pleaded facts that if proven would entitle [the defendants] to recover" under a judicially recognized theory of recovery under Illinois law. Anonymous v. Anonymous, 672 So. 2d 787, 790 (Ala.1995).
The Disctronics Group, as counterclaim plaintiff, cited no Illinois authority, outside of the insurance context, demonstrating, under Illinois law, the legitimacy of their claim alleging breach of the covenant of good faith and fair dealing, contained in Count I of their counterclaim. The Disctronics Group argues that this Court should take it upon itself to expand Illinois's tort of bad faith beyond the insurance context into the field of commercial contracts. In Martin v. Federal Life Ins. Co., 109 Ill.App.3d 596, 65 Ill.Dec. 143, 440 N.E.2d 998 (1982), the Illinois Appellate Court rejected a similar argument for the extension of the tort of bad faith into the employment-contract context, holding:
109 Ill.App.3d at 605-07, 65 Ill.Dec. at 150, 440 N.E.2d at 1005-06. It seems clear that if Illinois courts will not expand the tort of bad faith beyond the insurance context and into the employment contract context then those courts surely would not expand the tort of bad faith into the commercial contract context; therefore, the dismissal of Count I is due to be affirmed.
In Count II, the Disctronics Group sought relief based upon an allegation of economic duress. Because economic duress is an affirmative defense to a breach of contract action, we can only construe this count as seeking rescission of the Work-Out Agreement. In order for a party to obtain relief under Illinois law based upon a theory of economic duress, the party seeking relief must allege, on the part of the other party to the contract in question, a wrongful act that caused the complaining party to enter into an agreement that he would not have assented to otherwise. See Alexander v. Standard Oil Co., 97 Ill.App.3d 809, 53 Ill.Dec. 194, 423 N.E.2d 578 (1981); see also Carlile v. Snap-On Tools, 271 Ill.App.3d 833, 840, 207 Ill.Dec. 861, 866, 648 N.E.2d 317, 322, app. denied, 163 Ill. 2d 550, 212 Ill.Dec. 416, 657 N.E.2d 617 (1995) ("Economic duress is present where one is induced by a wrongful act of another to make a contract under circumstances depriving him of the exercise of free will."). Count II reads as follows:
The Disctronics Group alleged no wrongful act on the part of Quixote to support a finding of economic duress. The fact that Quixote threatened to force LVAC, a defaulting debtor corporation, into bankruptcy does not constitute a wrongful act, because "threatening to do that which one has a legal right to do" is not wrongful under Illinois law. Carlile, 271 Ill.App.3d at 840, 207 Ill. Dec. at 866, 648 N.E.2d at 322. "Nor does the defense of duress exist where consent to an agreement is secured because of mere hard bargaining or the pressure of financial circumstances." Id. The dismissal of Count II of the counterclaim is, therefore, due to be affirmed.
In Counts IV (unjust enrichment) and VIII (money had and received), the Disctronics Group attempts to obtain equitable relief based upon the Disctronics Group's loss of *1164 ownership of DMI under the terms of the Work-Out Agreement. The case of Barry Mogul and Assocs., Inc. v. Terrestris Dev. Co., 267 Ill.App.3d 742, 750-51, 205 Ill.Dec. 294, 643 N.E.2d 245, 251-52 (1994), app. denied, 159 Ill. 2d 563, 207 Ill.Dec. 513, 647 N.E.2d 1006 (1995), states:
(Emphasis added.) The defendants' equitable counterclaims likewise impermissibly seek to use equitable theories to shift the risk imposed upon them by an express contract (the Work-Out Agreement). The dismissal of Counts IV and VIII of the defendants' counterclaim is, therefore, affirmed, because those counts fail to state a legally cognizable claim under Illinois law.
In Count VII of the counterclaim, the Disctronics Group sought relief based upon an account stated theory. The factual basis of this claim is contained in Count VI ("Breach of Contract for $300,000 Escrow"), which was not dismissed. In Count VI, the defendants alleged:
Under Illinois law, "[a]n account stated [is] defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance." W.E. Erickson Constr., Inc. v. Congress-Kenilworth Corp., 132 Ill.App.3d 260, 267, 87 Ill. Dec. 536, 542, 477 N.E.2d 513, 519 (1985), judgment aff'd. and remanded, 115 Ill. 2d 119, 104 Ill.Dec. 676, 503 N.E.2d 233 (1986). Count VII merely states that "[c]ounter-defendants owe to counter-plaintiffs the sum of $300,000 due by open account and account stated." This clearly fails to state a claim for relief under an account-stated theory under Illinois law, for myriad reasons, including the fact that the Disctronics Group did not allege that Quixote had agreed that the amount was due and payable. Count VII is merely a disguised breach of contract claim, which is not needed, because the Disctronics Group can obtain such relief under Count VI of its counterclaim. The dismissal of Count VII of the defendants' counterclaim complaint was, therefore, proper.
*1165 In Count XI, the Disctronics Group sought to join a claim against a former member of the DMI board of directors who was placed on that board by Quixote while Quixote was a minority shareholder in DMI. Count XI alleged:
(Emphasis added.) Count XI was correctly dismissed, because the Disctronics Group, as a former stockholder of DMI, was impermissibly attempting to bring a direct action based upon a wrong allegedly suffered by DMI. Only through a derivative action can a stockholder seek redress for injury to the corporation in which he owns stock; the Disctronics Group did not seek to pursue a derivative action. Count XI, therefore, fails to state a claim upon which relief may be granted.
In Count IX of the counterclaim, the Disctronics Group alleged that the plaintiffs' continued use of certain trademarks and tradenames that had been used by DMI while it was part of the Disctronics Group is wrongful and constitutes "palming off" under Alabama's common law. The parties agree that Alabama law governs this claim, because DMI's principal place of business was in Alabama. There is no question that Alabama law provides a remedy for "palming off."[4] Because Count IX of the Disctronics Group's counterclaim "sufficiently pleaded facts that if proven would entitle [the Disctronics Group] to recover," Anonymous, 672 So. 2d at 790, under Alabama unfair competition law, the dismissal of this count cannot be justified under Rule 12(b)(6), Ala. R.Civ.; therefore, as to this count the order of dismissal is due to be reversed.
Quixote and Disc Manufacturing, Inc., also argued to the trial court that they were entitled to a summary judgment as to Counts I (breach of the implied covenant of good faith and fair dealing), II (economic duress), IV (unjust enrichment), and XI (breach of fiduciary duty), because, they claimed, those claims were subject to a release. Because we hold that the trial court could have properly based the dismissal of Counts I, II, IV, and XI solely upon Rule 12(b)(6), Ala.R.Civ. P., we need not address whether any of those claims had been contractually released.
We have considered the parties' other allegations of trial court error and conclude that the trial judge did not err in those respects.
1941401 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
1941451 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
1941559 REVERSED AND REMANDED.
1941623 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, KENNEDY, INGRAM, and BUTTS, JJ., concur.
[1] The 1989 Work-Out Agreement clearly changed the nature of the relationship of the parties to the present dispute. As of the date of the agreement, DMI was no longer the wholly owned subsidiary of the Disctronics Group, because the Work-Out Agreement clearly shifted a 49% interest in the voting stock of DMI to Quixote Corporation, along with 12% of DMI's preferred nonvoting stock, making Quixote Corporation a minority shareholder in DMI. Although the Disctronics Group defendants argue otherwise, that agreement extinguished the prior debtor-creditor relationship, transforming the debt owed to Quixote Corporation into equity in DMI and LVAC.
[2] Delaware law is the law applicable to the plaintiffs' breach of fiduciary duty claims, because "[t]he established rule of conflicts law is that `the internal corporate relationship is governed by the law of the state of incorporation.'" Massey v. Disc Mfg., Inc., 601 So. 2d 449, 454 (Ala.1992) (quoting P. John Kozyris, Corporate War and Choice of Law, 1985 Duke L.J. 1, 15).
[3] Even if the Agreed Final Order were considered to be a final judgment under Illinois law, it is highly questionable that the Full Faith and Credit clause would require Alabama courts to decline jurisdiction in this case even given the inclusion of the exclusive jurisdiction provision in question. According to the leading authorities, orders attempting to localize a dispute to one jurisdiction's courts are not always entitled to full faith and credit:
"Sometimes an injunction is granted restraining parties from maintaining a particular action in another state. If the ground on which the injunction is based be fraud in the transaction sued upon, or some other fact going to the existence of the cause of action, it amounts to a decision on the merits and bars a later suit. But if the injunction be granted because of the inconvenience of an action being brought away from the place where the cause of action arose and the parties and witnesses reside, or for similar reasons of the forum non conveniens type, it is not based on the substantive merits of the cause of action, and is no bar to the maintenance of the ... extrastate action, even though the court in which the action is pending may voluntarily respect the order if it wishes to do so. The injunction is directed against parties, not against the second court."
Robert A. Leflar et al., American Conflicts Law, § 83, p. 246 (4th ed. 1986).
Furthermore, "[a] judgment rendered in one State of the United States need not be recognized or enforced in a sister State if such recognition or enforcement is not required by the national policy of full faith and credit because it would involve an improper interference with important interests of the sister State." Restatement (Second) of Conflict of Laws, § 103 (1971).
[4] See, e.g., Jefferson Home Furniture Co. v. Jefferson Furniture Co., 349 So. 2d 5, 8 (Ala.1977), which states:
"Unfair competition generally consists of `palming off' on customers, who are buying with ordinary care, the goods or business of one person as and for the goods or business of another. Empire Guano Co. v. Jefferson Fertilizer Co., 201 Ala. 277, 78 So. 53 (1917)...." | September 13, 1996 |
353c6ae4-58c1-4c78-8f80-437823599ca9 | Ex Parte Slaton | 680 So. 2d 909 | 1941060 | Alabama | Alabama Supreme Court | 680 So. 2d 909 (1996)
Ex parte Nathan D. SLATON.
(Re Nathan D. Slaton v. State).
1941060.
Supreme Court of Alabama.
July 12, 1996.
*913 Oliver W. Loewy, LaJuana Davis, Montgomery, for Petitioner.
Jeff Sessions, Atty. Gen., and Sandra J. Stewart, Deputy Atty. Gen., for Respondent.
HOOPER, Chief Justice.[1]
The opinion of May 10, 1996, is withdrawn and the following is substituted therefor.
Nathan Slaton was indicted and convicted of the capital murder of Modenia Phillips. The murder was made a capital offense because it was committed during the course of a rape. See Ala. Code 1975, § 13A-5-40(a)(3). The murder occurred on May 28, 1987. Slaton was 17 years old at the time of the offense but, upon motion of the State, was tried as an adult.
Voir dire examination of the prospective jurors began on April 2, 1990, and lasted for three days. Trial began on April 5 and lasted until April 11. The jury found Slaton guilty on April 11. The sentencing phase of the trial began April 12. The jury recommended that Slaton receive the death penalty. After hearing arguments and testimony, the trial court on May 22, 1990, sentenced Slaton to death by electrocution. Slaton appealed to the Court of Criminal Appeals, which remanded the case on two issues: pretrial excusal of veniremembers by the trial judge's secretary, and the trial court's consideration of Slaton's New York juvenile adjudication. Slaton v. State, 680 So. 2d 877 (Ala.Crim.App.1993). On return from remand, the Court of Criminal Appeals affirmed the conviction and sentence on January 13, 1995. Slaton v. State, 680 So. 2d 879 (Ala.Crim.App.1995). It subsequently denied Slaton's application for rehearing. Slaton raises 25 issues on this certiorari review. We address 18 of those issues and adopt the holding of the Court of Criminal Appeals as to the remaining issues.
Did the court's instruction to the jury at the guilt phase of the trial violate Slaton's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution? From a careful reading of the record, we conclude that the instruction was designed to explain to the jury why the entire statement given by Slaton to the police was not before them as evidence. Slaton argues that it is improper for the court to give an instruction that informs the jury that there was evidence the prosecution would have presented, but for evidentiary rules that prevented it from doing so. The instruction stated as follows:
(R.T. 2101.)
The trial court's jury charge was simply an explanation to the jury as to why the statement was not going to be admitted into evidence. It served to clarify to the jury why it had not heard the whole statement. The trial court's jury instruction was not erroneous. Dooley v. State, 575 So. 2d 1191, 1194 (Ala.Crim.App.1990); Thompson v. State, 503 So. 2d 871, 879 (Ala.Crim.App. 1986).
Was evidence regarding Slaton's statement improperly admitted? Slaton claims he invoked his Miranda right to remain silent and that the police made implied promises to him. Slaton was arrested by the Albertville police and taken to the Albertville police station, where he made a taped statement. Slaton contends that while being interrogated, he invoked his right to remain silent and that his invocation of that right was ignored by the Albertville police. Slaton made this statement to the police: "Oh God, I don't feel like going through all this." Slaton claims that statement meant that he did not want to continue the questioning and was invoking his right to remain silent.
*914 Slaton did not clearly assertand gave no indicationthat he was invoking his right to remain silent. In Miranda v. Arizona, 384 U.S. 436, at 476-79, 86 S. Ct. 1602, at 1628-31, 16 L. Ed. 2d 694 (1966), the United States Supreme Court held that the police must give certain warnings before they can question a person under arrest. Statements made by an arrested person who has not received the warnings are inadmissible in court. One of the rights established in Miranda was the suspect's right to end questioning at any time. 384 U.S. at 474, 86 S. Ct. at 1627-28. "Once informed of Miranda rights, an accused has the burden of indicating in some manner his wish to remain silent." Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir.1987), cert, denied, 488 U.S. 934, 109 S. Ct. 329, 102 L. Ed. 2d 346 (1988); United States v. Alegria, 721 F.2d 758 (11th Cir.1983). In Lightbourne,
829 F.2d at 1017. The Eleventh Circuit Court of Appeals held that a defendant "who asked during interrogation whether he had to continue with [the] interrogation[,]" was not coerced into continuing the interrogation. Lightbourne, 829 F.2d at 1017-19.
Context determines the meaning of Slaton's statement. That statement is found on page 29 of the second supplemental record. Slaton was describing in chronological order what he claimed had happened at the victim's house on the day of the murder. Slaton told police that the victim forced him at gunpoint into her bedroom. Slaton claims the victim then accused him of breaking into her house and asked him if he had a girlfriend. The police officer taking Slaton's statement then asked him: "Then what happened?" Slaton then stated, "Oh, God, I don't feel like going through all this." Slaton's next statements described the victim forcing Slaton, at gunpoint, to have sex with her. There is no reason to think Slaton was asking that the questioning be stopped. Slaton was, in essence, saying he did not like talking about the sexual details of what he says happened next. The context indicates that he was not ambiguously or equivocally asserting his right to remain silent. The Court of Criminal Appeals correctly rejected Slaton's claim that his Miranda rights were violated.
Slaton also claims on this certiorari review, for the first time, that his statement was induced by an implied promise. The detectives told him they wanted to hear his side of the story, saying, "We'd love for you to tell us your side of the story." Slaton claims that this statement by the police officers contained an implied promise. Slaton argues that the police implied by this statement that they were his allies. Slaton contends that this implication by the police meant that his assisting them could, in turn, benefit him. Slaton claims this was his understanding and that he was manipulated by this statement. There is simply no improper inducement in a police officer's saying that he or she wants to hear a suspect's story. Slaton's claim is without merit.
Did the trial court commit reversible error when it failed to instruct the jury that it could reject Slaton's confession if it was not made voluntarily? The trial court instructed the jury: "[You] shall consider the circumstances under which the alleged statement was obtained and the appliances [sic] by which it was supposedly elicited, including the situation and mutual relations of the parties." (R.T.2099.) The trial court did not tell the jury that it had already determined the statement was made voluntarily; such a statement is proscribed by Ex parte Singleton, 465 So. 2d 443 (Ala.1985). The instruction was not erroneous.
Did the trial court err in admitting testimony based on a transcript of an unauthenticated tape recording of Slaton's confession? At trial, one of the detectives who questioned Slaton on the night of his arrest testified as to Slaton's statement. The officer, Detective Edsel Whitten, testified from his memory, part of his recollection being refreshed by a transcript of the recording. Neither the tape nor the transcript was offered into evidence, nor was the tape authenticated. Slaton contends that because the tape was never authenticated the testimony based on a memory refreshed by the transcript was not properly admitted into evidence. In United States v. Scott, 701 F.2d 1340 (11th Cir.1983), the Eleventh Circuit Court of Appeals wrote:
701 F.2d at 1346. The Court of Criminal Appeals, in Walker v. State, 445 So. 2d 955 (Ala.Crim.App.1983), also stated:
445 So. 2d at 957.
The transcript was authenticated by Detective Tommy Cole, and Detective Whitten used the transcript to refresh his recollection. Neither the tape recording, nor the transcript of that recording or any portion of that transcript, was ever offered or admitted into evidence at Slaton's trial. While looking at the transcript, Officer Whitten was asked questions such as "What did Slaton say?" or "What did the witness say?" There was no error in allowing Detective Whitten's testimony. Kuenzel v. State, 577 So. 2d 474, 489 (Ala.Crim.App.1990), affirmed, 577 So. 2d 531 (Ala.1991), cert, denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991); Ex parte Taylor, 666 So. 2d 73 (Ala.1995).
Did the prosecutor improperly comment on Slaton's failure to testify? Slaton contends that the prosecutor's closing argument contained a comment on his failure to testify and thus violated his constitutional right to remain silent.
The prosecutor's comment was: "But what evidence is there, ladies and gentlemen, that on May 28, 1987, between 9:00 and 9:30 in the morning that Nathan Slaton had one of those explosions?" This question was asked in the context of the prosecutor's discussion of Slaton's insanity defense. Slaton had produced expert testimony that he might be suffering from an "explosive disorder" that caused him to become uncontrollably violent at times. However, Alabama law holds that if there is testimony that a defendant suffers from a mental disease or defect but also has lucid periods, then the crime is presumed to have been committed during a lucid period. In rebutting this defense, the prosecution referred to the failure of the defense to offer any evidence that the murder occurred during an explosive period. Hardy v. State, 462 So. 2d 1016, 1017 (Ala. Crim.App.1984). Slaton's claim is without merit.
Slaton contends that the trial court committed reversible error by allowing two expert witnesses for the State, Dr. Wilburn Rivenbark and Dr. Kmal Nagi, to testify as to their opinions of Slaton's mental condition based on hospital records that were not admitted into evidence. Slaton says this violated the Alabama rule that the information an expert relies upon must be in evidence.
Slaton argues that Dr. Rivenbark improperly testified regarding the administration of the Millon Clinical Multiaxial Inventory, or MCMI. Dr. Rivenbark testified that the *916 MCMI was an objective test, i.e., that it contained objective questions that required true or false answers. Dr. Rivenbark testified that scales used for the MCMI test would reveal whether the person taking the test had answered carelessly or had attempted to deny or exaggerate his answers or problems. Slaton took the test. Dr. Rivenbark personally graded and determined the results of Slaton's test. Dr. Rivenbark stated that the indicators of Slaton's test showed that he did not answer it carelessly or untruthfully. Dr. Rivenbark was not relying on the opinions of others. Dr. Rivenbark testified as to his personal administration and grading of the test. This was sufficient to substitute for the admission of the test results.
Dr. Nagi testified that he partially relied on Dr. Rivenbark's administration of the MCMI test. Dr. Rivenbark's testimony concerning the test was already in evidence at that time. Dr. Nagi relied on several factors in reaching his diagnosis. Those factors included a social history of Slaton and a personal interview with Slaton; Slaton's behavior during hospitalization, as recorded by a team of people working with Dr. Nagi, including a social worker, a therapist, a psychologist, a nurse, and a psychiatrist; and psychological testing. Thus, his opinion was based only in small part on the opinion of Dr. Rivenbark. The only item Dr. Nagi based his opinion on that was not introduced into evidence was the MCMI test. However, because Dr. Rivenbark described how he administered the test, explained the test, and explained the result of the test, all the facts about the test were in evidence. Because all the facts were in evidence, Dr. Nagi's testimony was entirely proper. The leading case on this question is Nash v. Cosby, 574 So. 2d 700 (Ala.1990), which allowed a medical expert to give his opinion based in part on the opinions of others, even though those opinions were not in evidence:
574 So. 2d at 704. Further, Dr. Nagi did not actually rely on the medical opinion of Dr. Rivenbark. Dr. Nagi relied on the objective results of the MCMI test. Dr. Rivenbark had testified regarding the psychological test before Dr. Nagi testified. Therefore, the information was already in evidence and could serve as a proper basis for Dr. Nagi's opinion testimony. Dr. Nagi also testified as to the facts he gathered from his interview with Slaton. The facts from the personal interview and the social history were in evidence and could properly serve as a basis for Dr. Nagi's opinion testimony.
Slaton claims the prosecutor made improper arguments during the closing of the guilt phase. Slaton claims that during rebuttal the prosecutor misstated the evidence on a number of matters, most importantly those relating to the testimony of two doctors called by the defense, as their testimony related to their diagnosis of Slaton as having a mental disorder called "intermittent explosive disorder" and as it related to their method of diagnosing the disorder. Slaton contends that the prosecutor failed to distinguish between a preliminary diagnosis and a final diagnosis made by the St. Lawrence Psychiatric Center and contends that the prosecutor misrepresented evidence relating to how the final diagnosis was reached. Slaton's attorney objected at the end of the prosecutor's closing argument, but refused a curative instruction. Slaton makes five claims about the prosecutor's statement regarding the expert testimony.
First, Slaton claims that the following argument was improper because, he says, it misstated the evidence:
(R.T. 2049-52.)
Slaton claims that the prosecution misstated the evidence in two ways: (1) By asserting that Mr. Murray and Dr. Huessy (the two individuals at St. Lawrence Psychiatric Center who diagnosed Slaton as having intermittent explosive disorder) had liedarguing that they said they based their diagnosis on a test that had not been conducted at the time they reached their diagnosis, and (2) by asserting that Slaton was diagnosed with finality on the day he was admitted to the St. Lawrence Psychiatric Center.
The prosecutor did not assert that Slaton's experts lied and he did not assert that Slaton was "diagnosed with finality" on the day he was admitted. He drew legitimate inferences from the evidence presented and urged the jury to do the same. Kuenzel v. State, 577 So. 2d at 493-94.
Slaton's second claim as to the prosecutor's closing statements about Slaton's expert witnesses is that the prosecutor distorted the evidence when he said St. Lawrence Psychiatric Center made a diagnosis on the first day. The record does show that the experts at St. Lawrence Psychiatric Center made a diagnosis on the first day of Slaton's admission. The fact that the final diagnosis was made after further evaluation does not make the prosecutor's comment a misstatement of the facts.
Slaton's third claim is that the previous two comments, when coupled with the prosecutor's statement about the crime and with the photographs of the crime scene and the victim's body, resulted in a misstatement of the evidence. This claim is invalid. There is nothing improper with the prosecutor's reference to the evidence and his urging the jury to reject Slaton's defense based on a claim of mental disease or defect. Darden v. Wainwright, 477 U.S. 168, 185, 106 S. Ct. 2464, 2473-74, 91 L. Ed. 2d 144 (1986).
Slaton's fourth claim is that the prosecutor's statement that Slaton did not receive medication while in jail and did not seem to be manifesting seizures was not *918 based on the evidence introduced at trial. Slaton failed to object at first, but later objected and then refused a curative instruction. Slaton was inviting error. Because of Slaton's own invitation of error, he cannot now complain that he had a fundamentally unfair trial. Johnson v. State, 507 So. 2d 1337,1344 (Ala.Crim.App.1985).
Slaton's fifth claim is that the prosecution wrongly used Dr. Nagi's testimony to support an assertion that intermittent explosive disorder will not appear in future editions of DSM-IV, a standard test administered in the diagnostic care of mental patients. Dr. Nagi testified that intermittent explosive disorder was a very rare disorder, so rare that experts who prepared DSM-IV were thinking of deleting that diagnosis from the latest edition of DSM-IV. The prosecutor, at most, overstated Dr. Nagi's testimony, but the overstatement was so slight as to be trivial. Even if the statement was error, it was not prejudicial error.
Slaton also claims that the cumulative effect of all of these comments by the prosecutor about his defense of mental disease or defect mandate reversal. However, Slaton has failed to demonstrate that his claims are any stronger when considered cumulatively. The prosecutor did not misstate the evidence, nor did he use improper argument. Gray v. State, 568 So. 2d 381, 384 (Ala.Crim.App.1990).
Slaton claims that the State failed to prove the chain of custody for certain critical pieces of evidence. Slaton contends that the State failed to meet its burden of establishing the chain of custody for the victim's vaginal swab and blood samples and Slaton's saliva sample. Slaton claims there is a missing link, not a weak link, in the chain of custody for these items because there was no testimony concerning the transportation of the victim's body. He also contends that there is a missing link in the chain of custody of the Slaton saliva sample because the testimony about how the sample was delivered to the laboratory is in conflict. Detective Cole testified that he delivered the sample in an envelope to the Department of Forensic Sciences. Slaton claims that the person at the Department of Forensic Sciences who received the sample testified that the sample was in two clear plastic vials when he received it. Slaton claims that this conflict indicates that there must have been another link in the chain of custody. Detective Cole testified that the saliva evidence was transferred in the same condition to Brent Wheeler at the Department of Forensic Sciences lab at Huntsville. (R.T. 1354.)
Ex parte Holton, 590 So. 2d 918 (Ala. 1991), sets forth the legal analysis to be applied in determining if a proper chain of custody has been established:
590 So. 2d at 920. While each link in the chain of custody must be identified, it is not necessary that each link testify in order to prove a complete chain of custody. Harrison v. State, 650 So. 2d 603 (Ala.Crim.App.1994).
*919 There had been a case law conflict on chain of custody that was settled in January 1996 by this Court. In Ex parte Garrett, 608 So. 2d 337 (Ala.1992), this Court had held that a lack of direct testimony as to a link in the chain of custody was a missing link, not a weak link. However, this conflict was recently settled in Kennedy v. State, [Ms. 1941731, January 26, 1996] ___ So.2d ___ (Ala.1996). In Kennedy, this Court reaffirmed the chain-of-custody rule from Holton and overruled the chain-of-custody rule stated in Garrett.
Dr. Joseph Embry testified that he made swabs of the vagina and made smears of the contents. He packaged these items in the rape kit, sealed it, and placed his initials across the seal. He said he turned this over to the contract driver. The contract driver, Bruce Sparling, testified that he received these items from Dr. Embry, kept them in the same condition, and turned them over personally to Roger Morrison, who conducted the tests on the items.
Detective Cole testified that at the conclusion of Slaton's statement, Slaton was asked to give samples of hair, blood, and saliva. Slaton gave them voluntarily. Slaton removed the head hairs and pubic hairs personally, and they were put in separate envelopes, which Cole sealed and initialed. Then Slaton gave a saliva sample. Cole testified that the gauze used in taking the sample was in a small square package. He said that he opened the package and that "[h]e [Slaton] was given some gauze to chew and he chewed it and spit it in the little container." (R.T. 1305.) Slaton then put the sample into an envelope. Detective Cole testified that he left the hair and saliva samples in his evidence locker and that when he later retrieved them they were in the same condition as when he took them from Slaton.
A blood sample was also taken from Slaton at the hospital. Detectives Whitten and Cole observed the taking of that sample and, immediately upon its being drawn from Slaton, it was turned over to Detective Whitten in the presence of Detective Cole.
All the samples were taken from Slaton in the room where he was questioned, except for the blood. Detective Whitten's testimony supported everything Detective Cole testified to about Slaton's samples. Whitten put the blood sample in the refrigerator until he transported it to the lab. He placed the seal on the evidence package, placed his identification on it, and turned it over to Brent Wheeler.
Brent Wheeler of the Alabama Department of Forensic Sciences testified that he received "a manila envelope containing head hair identified as having been taken from Nathan Slaton, a sealed envelope containing pubic hair from the same individual, two sealed plastic bottles identified as containing saliva from the same individual, two red-topped tubes identified [as] containing blood from the same individual." (R.T. 1414-15.) He further testified that he turned these items over to Mr. Morrison, the serologist who conducted the tests. There is testimony establishing each link in the chain of custody. Therefore, the State met the legal standard for establishing chain of custody. There was no evidence presented that the samples in this case had been tampered with. The simple fact that Detective Cole testified that Slaton spit the gauze used to take the saliva sample into a "little container" does not contradict the testimony of Wheeler, who used the term "bottle." Nor does the fact that the containers or bottles were placed in an envelope by Slaton create a conflict in the testimony. Therefore, the evidence does not show that there was a missing link as to the saliva sample.
Therefore, as to the hair, saliva, and blood samples, there is a chain of continuous possession from the time those samples were taken from Slaton until they were received by the expert who tested those items. There was a chain of custody established for each item. Alabama law does not require each link to testify.
In addition, the validity of the results of these tests were verified by other evidence. The result of the blood test did not conflict with the result of the saliva test. In regard to the body of the victim and the semen samples taken with the vagina swabs, Slaton admits he had sex with the victim. It is obvious that the State overwhelmingly *920 proved the corpus delicti in this case independent of Slaton's statement, and there was no evidence of any tampering with the evidence. Slaton is not entitled to any type of relief based on his chain-of-custody claims.
Did the jury instruction regarding reasonable doubt in both the guilt phase and the penalty phase violate the Eighth and Fourteenth Amendments? Slaton maintains that the trial court's charge to the jury at the guilt phase, stating that reasonable doubt is properly equated with "substantial doubt" and that the jury must be convinced of Slaton's guilt beyond a reasonable doubt and "to a moral certainty," was improper and reversible error under the Due Process Clause. He argues that such an instruction might allow a conviction based on a lower standard than that allowed by the United States Constitution. Slaton makes the same arguments regarding the terms "substantial doubt" and "moral certainty" as they were used in the instructions given at the penalty phase.
In Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994), the United States Supreme Court held that jury instructions on reasonable doubt that incorporated the terms "moral certainty," "abiding conviction," and "substantial doubt," did not lower the standard for determining what the term "guilt beyond a reasonable doubt" means. We conclude that there was no error in the trial court's instructions to the jury for determining guilt beyond a reasonable doubt.
Slaton also claims that the trial court's jury instruction on reasonable doubt given at the sentencing stage of his trial was improper under the United States Supreme Court's ruling in Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328,112 L. Ed. 2d 339 (1990). In Cage, the United States Supreme Court determined that reasonable doubt instructions equating reasonable doubt with "a grave uncertainty" violated the due process rights of the defendant. 498 U.S. at 40, 111 S. Ct. at 329. The United States Supreme Court in Victor, supra, clarified its decision in Cage. The question is not whether the instruction "could have" been applied constitutionally, but whether there is a reasonable likelihood that the jury did so apply the instruction. Victor, 511 U.S. at ___ _ ___, 114 S. Ct. at 1242-43. The trial judge in Slaton's case instructed the jury that it had to find aggravating circumstances to exist beyond a reasonable doubt in order to recommend the death penalty. He also reminded the jury of the instructions he had given during the guilt phase concerning the basic law in defining the terms "reasonable doubt" and "moral certainty." The trial judge instructed the jury to apply at the sentencing stage his previous instructions on reasonable doubt, which were:
(R.T. 2079-81.) After reviewing the trial court's instructions at the sentencing stage in their entirety, we determine that they did not violate the principles expressed in Victor.
Slaton claims the trial court erred in instructing the jury that it could find evidence unworthy of credit only if it was unable to reasonably reconcile all the evidence. Slaton contends that this instruction was tantamount to telling the jury that there is a presumption that all the testimony it heard was true. He says this violates state law. The instruction was not tantamount to telling the jury that there is a presumption that all the testimony is true. Instead, the instruction tells the jury to weigh and reconcile all the testimony it heard.
The trial judge instructed the jury:
(R.T. 2098.)
However, the trial judge did not, as Slaton seems to claim, charge the jury that witnesses were presumed to tell the truth. The instruction merely tells the jury that it should weigh all of the evidence and reconcile it, if it reasonably could do so, but that if there was a conflict in the evidence that was not capable of reconciliation, it ought to take that evidence which it thought was worthy of credit and give it such weight as it thought the evidence was entitled to receive. Furthermore, Slaton ignores other relevant portions of the trial court's charge as to determining the credibility of the evidence. The trial court charged the jury that it could take into consideration "any interest which any witness might have shown" and that if the jury believed "that any material part of the evidence of any witness was willfully false, it could disregard all the testimony of such witness." There was no error in the trial court's charge to the jury concerning testimony and evidence. Knotts v. State, [Ms. CR-92-0462, June 16, 1995] ___ So.2d ___ (Ala.Crim.App.1995).
Slaton claims the jury instruction regarding the presumption of innocence violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. The jury was instructed on the presumption of innocence and was told that Slaton was to be presumed innocent during its deliberations. Slaton claims the jury instructions were defective because the jury was also told to assign such weight to each piece of evidence as it thought the evidence should receive; he says the jury was left to assign whatever weight it wanted to the presumption of innocence. He claims this violated his constitutional rights.
The trial court instructed the jury:
(R.T. 2078-79.)
The second instruction cited by Slaton was:
*922 "You should weigh all the evidence and reconcile it if you can reasonably do so, but, if there is a conflict in the evidence which is not capable of reconciliation, you ought to take that evidence which you think is worthy of credit and give it just such weight as you think it is entitled to receive. In doing so, you may take into consideration any interest which any witness might have been shown to have in the outcome of the case. If you believe that any material part of the evidence of any witness was willfully false, you may disregard all of the testimony of such witness."
(R.T. 2098.)
Slaton claims the jury's guilty verdict shows that the jury "must have perceived a conflict between various pieces of the State's evidence and the presumption of innocence since it determined that Mr. Slaton was guilty." According to Slaton, since the jury was instructed to assign to each piece of evidence "just such weight as you think it is entitled to receive," the jury must have assigned some weight to the presumption of innocence.
The instructions cited by Slaton were not given in conjunction with each other. The jury was clearly instructed that Slaton had a presumption of innocence that was to stay with him throughout the trial and that the State had the burden of proving his guilt beyond a reasonable doubt. Slaton is attempting to twist what the trial court said, so as to argue that the jury might have misunderstood the instructions on evidence and thought that those charges applied to the presumption of innocence. Slaton's basis for this claim is that the jury found him guilty. Slaton's reasoning would invalidate all guilty verdicts, an absurd proposition. What the verdict shows is that the jury concluded that the State had met its burden of proving Slaton's guilt beyond a reasonable doubt and had overcome the presumption of innocence.
The trial judge's instructions regarding the presumption of innocence and regarding the evidence were entirely proper. Carroll v. State, 407 So. 2d 177 (Ala.1981). Slaton's claim to the contrary is frivolous.
Slaton claims that the trial court erred when, while it had the case on remand to reconsider the death sentence, it resentenced Slaton to death. Slaton argues that the error stems from what he alleges to be the trial court's presumption for the death penalty over a sentence of life imprisonment without parole. He also argues that the trial court improperly ignored a statutory mitigating factor. Slaton claims these errors violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights.
Slaton's argument is in three parts. First, he argues that the trial court committed preremand error when it failed to take into account the statutory mitigating factor of a lack of a significant criminal history. He argues that the trial court erred in this regard because it considered his juvenile record. The trial court relied on Slaton's juvenile record to find that this mitigating factor was not applicable. The trial court's preremand error was based on the fact that juvenile adjudications are not criminal convictions. The Court of Criminal Appeals remanded the case to the trial court because of this error, and on remand the trial court reimposed the death sentence.
Second, Slaton argues that the trial court committed error on remand by presuming that the correct sentence was death. Slaton claims the law provides a presumption in favor of life and not death, and, therefore, that the alleged presumption by the trial court violated the law. Slaton also claims that the trial court's order erroneously fails to mention the mitigating factor of no significant past criminal history. Third, Slaton argues that there are other mitigating factors, and that those other factors, coupled with the no-significant-criminal-history factor and properly weighed, should have led to a sentence of life without parole, instead of death.
We cannot accept these arguments as a basis for holding that the trial court improperly resentenced Slaton to death. The trial court fully complied with the Court of Criminal Appeals' order on remand, and it applied the mitigating-factors analysis. The court's reweighing of the mitigating factors, taken in *923 light of the jury's unanimous recommendation of death, suggested that death was the appropriate sentence.
The trial judge stated in his second sentencing order in response to the remand by the Court of Criminal Appeals:
Furthermore, the existence of aggravating circumstances, the weight given those aggravating circumstances, and the unanimous recommendation of the jury that the death sentence be imposed were enough for the trial court to sentence Slaton to death without any consideration of his juvenile record. The trial court considered the mitigating circumstance of no significant history of prior criminal activity in reweighing the aggravating and mitigating circumstances. We agree with the Court of Criminal Appeals in its rejection of Slaton's arguments regarding Issue 12.
Slaton claims that in sentencing him to death the trial court failed to consider other mitigating circumstances. Slaton contends that the trial court failed to make specific findings of fact regarding aggravating and mitigating circumstances, as the court is required to do when sentencing someone to death. Slaton claims the trial court should have considered his family background as a mitigating circumstance.
However, the trial court did enter the following:
The trial court further wrote in its order:
(C.R. 240-42).
The trial court, in compliance with Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978), and its progeny, permitted Slaton to present all of the mitigating evidence he wanted to present, and the trial court fully considered that evidence in imposing the sentence. The trial court did not err in finding that some of Slaton's alleged mitigation did not mitigate his crime. "While Lockett and its progeny require consideration of all evidence submitted as mitigation, whether the evidence is actually found to be mitigating is in the discretion of the sentencing authority." Bankhead v. State, 585 So. 2d 97,108 (Ala.Cr. App.1989).
The trial court instructed the jury, pursuant to Slaton's request, on what factors the jury might consider to be mitigating. The trial court gave a number of examples of possible mitigating factors. The trial court then stated that this instruction did not mean the trial court was giving its opinion as to the factual validity or invalidity of these possible mitigating factors. That, the court said, was for the jury to decide. (R.T. 2289-93.)
Trial judges are presumed to follow their own instructions, and they are presumed to know the law and to follow it in making their decisions. Ex parte Harrell, 470 So. 2d 1309, 1318 (Ala.), cert, denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985). The trial court specifically stated in its sentencing order that it had considered all of the mitigation evidence offered by Slaton. (C.R. 242.)
Slaton contends that because the trial judge did not list in his sentencing order all the nonstatutory items Slaton offered as mitigation, that means he failed to consider all of Slaton's nonstatutory mitigation. There is no requirement that a trial court list in its sentencing order all nonstatutory mitigation offered. See Ex parte Haney, 603 So. 2d 412, 417-19 (Ala.1992). Slaton's claim that the trial court failed to consider his nonstatutory mitigating evidence is not supported by the record. The trial court clearly considered all the mitigation Slaton offered.
Was there insufficient corroboration to admit Slaton's statement into evidence? Slaton argues that when offering a defendant's statement for admission into evidence, the prosecution must also submit corroborating evidence independent of the statement. Slaton argues that there was insufficient corroboration to justify the admission of his statement and, therefore, that the statement should not have been admitted.
Alabama law does not require the presentation of substantial independent evidence establishing the trustworthiness of a statement before that statement is admissible in trial against a defendant. The rule of law in Alabama is that a confession is not *925 admissible unless there is independent evidence tending to prove the corpus delicti of the offense. Spear v. State, 508 So. 2d 306, 308-09 (Ala.Crim.App.1987).
There are only two elements in the corpus delicti of an offense: (1) That a certain result has been produced, and (2) that a person is criminally responsible for that result. Spear v. State, 508 So. 2d at 308; Johnson v. State, 473 So. 2d 607, 608 (Ala.Crim. App.1985). The evidence clearly showed that the victim was murdered and that Slaton was the murderer.
To support his claim, Slaton cites Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954). However, the ruling in Opper applies only to federal cases. Even if that were not the case, we would conclude that Opper does not support Slaton. The United States Supreme Court held in Opper:
348 U.S. at 93, 75 S. Ct. at 164. There was "substantial" independent proof of the corpus delicti and the criminal responsibility of Slaton. Slaton was seen going into the house of the victim and coming out just before her dead body was discovered. She had been shot and strangled, and she was found to have Slaton's semen in her vagina. The cause of death was a gunshot wound.
Slaton argues that the fact that the trial judge's secretary was allowed to dismiss jurors from the venire violated his right to a fair and impartial jury. The secretary dismissed 35 prospective jurors for various reasons. Slaton maintains that the secretary was not authorized to excuse the jurors and that only the trial judge can dismiss jurors for the excuses contained in the statute. Slaton also contends that the trial court failed to comply with the Court of Criminal Appeals' order on remand as to that issue.
Ala. Code 1975, § 12-16-145, provides, in part:
In Windsor v. State, [Ms. 1930048, Feb. 18, 1994] ___ So.2d ___ (Ala.1994), this Court held that it was not error for the trial judge to delegate to another person the authority to excuse jurors or for that person to excuse potential jurors outside the defendant's presence prior to trial.
In the present case, the judge's secretary was properly designated as having authority to excuse potential jurors, and the trial judge provided her with a catalog of acceptable excuses. Therefore, we conclude that the trial court complied with the Court of Criminal Appeals' order and with the procedures outlined in Windsor v. State. We see no error in the secretary's excusing of potential jurors outside Slaton's presence.
Slaton claims the instructions to the jury were coercive and censorious and goaded the jurors into reaching a verdict; he says, in effect, the judge gave a "dynamite" charge. In the sentencing phase, the judge gave the jury an instruction describing its deliberative duty. That charge was an Allen[2] charge. Slaton contends that it was coercive and unfairly led to his death sentence.
After the jury began its sentence-stage deliberations and before it returned its sentence recommendation, the jury sent the following question to the trial court:
(R.T. 2311.)
In response to the question, the trial court instructed the jury:
*926 "... I don't want to know what the vote is, that's not any of my business at this point, what your vote is, so don't give me anything concerning the numerical count of your vote. But it is highly desirable and important if there is any way possible, ladies and gentlemen, that you reach a verdict. And of course, it is your duty, sworn duty, to do so if you can. You are urged to make every effort to reach a verdict consistent with your conscience. You should lay aside mere pride or judgment of opinion. You should examine your difference in a spirit of openness, fairness, and candor. Reason together over any differences that you have and harmonize, if possible. Have a proper respect for each other's opinion and listen to each other's opinion.
(R.T. 2311-12.)
It is clear from this charge and other statements made in the context of it that there was no coercion placed upon the jury by the trial judge. The judge specifically stated on two occasions that he was not attempting to coerce those jurors in the minority into agreeing with the majority (R.T. 2314-15) and that he was not trying to impress "guilt feelings" on the jury in order to get it to return a verdict.
This Court has held that "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) (citation omitted). The trial judge urged the jury to "resume deliberations" and to "cultivate a spirit of harmony." The trial judge did not ask the jury what its vote was; he did not suggest which way the verdict should be returned; and he made no threat or coercion to suggest the jury had to return a verdict. The trial court did not violate Slaton's rights in giving this supplemental charge.
Slaton claims the trial judge's jury instructions regarding the function of mitigating circumstances precluded individualized sentencing and mandated a presumption of death, in violation of his rights. He also argues that the jury instructions regarding aggravating circumstances subverted the unanimity requirement, in violation of his rights. Slaton asserts that the jury instructions regarding mitigating circumstances suggested that he had to show that he did not deserve the death penalty. Slaton also contends that the trial court's charge in the sentencing phase could have misled the jury to believe that aggravating circumstances could be found to exist without a unanimous vote.
Ala. Code 1975, § 13A-5-45(f), provides that the State has the burden of proving beyond a reasonable doubt the existence of an aggravating circumstance in order for a capital defendant to be sentenced to death.
The trial court instructed the jury:
(R.T. 2285.)
The trial court also instructed the jury at the sentence-stage:
(R.T. 2163, 2165.)
The instructions clearly informed the jury of the function of aggravating and mitigating circumstances, and they clearly did not mandate a presumption that death was the appropriate sentence. The instructions clearly informed the jury that, unless and until the State proved at least one aggravating circumstance beyond a reasonable doubt, the jury could not even consider sentencing Slaton to death. Slaton's claim to the contrary is frivolous.
Slaton also claims that the sentence-stage jury instructions on aggravating circumstances subverted the requirement that the jury unanimously find that an aggravating circumstance exists before it can be weighed in determining the sentence. This claim is incorrect. The record shows otherwise.
Did the State present irrelevant inflammatory evidence and make improper arguments based on that evidence? Slaton argues that the presentation of certain evidence and the State's arguments based on that evidence violated his constitutional rights because they focused on the victim and her surviving family members. The testimony to which Slaton objects involved the victim's activities and the impact of the killing on the victim's family.
Slaton first claims that there was federal constitutional error in the introduction of the testimony of the victim's daughter and in the argument of counsel. In support of his federal constitutional claim, Slaton relies exclusively on the United States Supreme Court's decisions in Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989). Booth held that victim impact evidence was improper for consideration in sentencing in a capital case. In Gathers, the Supreme Court held that the prosecution could not focus on the personal characteristics of the victim during the sentencing stage of a capital case. However, in Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), the United States Supreme Court expressly overruled Booth and Gathers.
In Payne, the Supreme Court held that victim impact evidence was admissible at the sentencing stage of a capital case. The Supreme Court also held it was proper for the prosecution to refer to the victim's characteristics at the sentencing stage of a capital case. 501 U.S. at 824-25, 111 S. Ct. at 2607-08.
Slaton also claims there was state law error in the introduction of the testimony of the victim's daughter and in the argument of the prosecutor at the guilt stage of his trial. Slaton relies on Alabama case law holding that evidence of a victim's good character cannot be admitted in a murder trial unless the defendant first presents evidence indicating the victim was of a bad character. There was no evidence of the victim's good character introduced at the guilt stage of Slaton's trial. At the guilt stage, the victim's daughter testified that the mother was "basically" in good health and that she had enjoyed working with crafts and gardening. (R.T. 976.) The daughter also testified that her mother had had throat surgery and had trouble speaking. (R.T. 981-83.) This information was not relevant. However, it was not evidence of good character. Although the admission of this evidence *928 was error, it was not prejudicial to Slaton's defense and was therefore harmless.
The other case law Slaton cites concerns inflammatory and prejudicial argument by prosecutors. The remark cited by Slaton is one in which the prosecutor briefly stated that he spoke for the victim's family. The remark by the prosecutor was not inflammatory. Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986); Henderson v. State, 583 So. 2d 276, at 286 (Ala.Crim.App.1990), affirmed, 583 So. 2d 305 (Ala.1991), cert, denied, 503 U.S. 908, 112 S. Ct. 1268,117 L. Ed. 2d 496 (1992).
Further, Alabama law permits the presentation of victim impact evidence at the sentence-stage of a capital murder trial, and it permits argument based on that evidence. The Court of Criminal Appeals has ruled that a trial court properly considered "statements from members of the victim's family describing the physical and psychological effects the victim's death had on members of her family." Knotts v. State, [Ms. CR-92-0462, June 16, 1995] ___ So.2d ___ (Ala.Crim.App. 1995); McMillian v. State, 594 So. 2d 1253, 1273-74 (Ala.Crim.App.1991). Slaton's claim that Alabama law prohibits the introduction of victim impact evidence at the sentence stage of a capital murder trial is simply wrong.
There was no irrelevant inflammatory evidence presented, and the prosecutor made no improper inflammatory argument focusing on the victim. The evidence and argument Slaton complains of did not violate his federal constitutional rights or state law rights.
Ala. Code 1975, § 13A-5-53(a), mandates that appellate review of a death sentence include a determination "whether any error adversely affecting the rights of the defendant was made in the sentence proceedings, whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence, and whether death was the proper sentence in the case."
We find in the sentencing proceedings no error adversely affecting Slaton's rights and no violation of his rights. The trial court's findings concerning the aggravating and mitigating circumstances (C.R. 240-43) were supported by the evidence.
In determining if death was the proper sentence in this case, this Court must answer three questions set out in Ala. Code 1975, § 13A-5-53(b):
As to the first question, we conclude that no passion, prejudice, or other arbitrary factor influenced the imposition of the death penalty. The trial court specifically instructed the jury to avoid such influences (R.T. 2294), and there is simply nothing in the record to indicate that any such factors were present.
The second question is "[w]hether an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence." The trial court found one aggravating circumstancethat the capital offense was committed during a rape in the first degree. (C.R. 240.) There was little mitigation. (C.R. 241-42.) Our independent weighing of the aggravating circumstances and the mitigating circumstances indicates that death was the proper sentence in this case.
The third question is whether the death sentence in this case "is excessive or disproportionate to the penalty imposed in similar cases." It is not. See Freeman v. State, 555 So. 2d 196 (Ala.Crim.App.1988), cert, denied, 496 U.S 912, 110 S. Ct. 2604, 110 L. Ed. 2d 284 (1990); Bradley v. State, 494 So. 2d 750 (Ala. Crim.App.1985), cert, denied, 480 U.S. 923, 107 S. Ct. 1385, 94 L. Ed. 2d 699 (1987); Dunkins v. State, 437 So. 2d 1349 (Ala.Crim.App. 1983), cert, denied, 465 U.S. 1051, 104 S. Ct. 1329, 79 L. Ed. 2d 724 (1984); Thompson v. *929 State, 542 So. 2d 1286 (Ala.Crim.App.1988), affirmed, 542 So. 2d 1300 (Ala.), cert, denied, 493 U.S. 874, 110 S. Ct. 208, 107 L. Ed. 2d 161 (1989); Barbour v. State, 673 So. 2d 461 (Ala. Crim.App.1994).
OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERULED; AFFIRMED.
MADDOX, SHORES, HOUSTON, and INGRAM, JJ., concur.
[1] Although Chief Justice Hooper was not present when this case was orally argued, he listened to the tape of the oral argument held on October 10, 1995.
[2] Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). | July 12, 1996 |
4311e694-8da7-4be6-8ad9-bf1516c24023 | Ex Parte Brannon | 683 So. 2d 994 | 1950761 | Alabama | Alabama Supreme Court | 683 So. 2d 994 (1996)
Ex parte Grace Wills BRANNON.
(In re Grace Wills BRANNON v. David McGOWAN and Shirley McGowan).
1950761.
Supreme Court of Alabama.
August 9, 1996.
*995 Joseph P. Hughes, Geneva, for Petitioner.
Henry F. Lee III and David W. Rousseau, Geneva, for Respondents.
HOUSTON, Justice.
On August 16, 1982, David McGowan and Shirley McGowan purchased a house from Grace Wills Brannon for $28,000. The McGowans paid Brannon $3,600 as a down payment; they were to pay $1,400 on January 10, 1983, and the balance of $23,000 was to be paid in monthly installments over 15 years, beginning on September 15, 1982, with Brannon providing seller financing. At the time of the transaction, Brannon executed and delivered to the McGowans a deed to the property and the McGowans executed and delivered to Brannon two promissory notes and a mortgage. One of the promissory notes was for the $1,400 due on January 10, 1983, and the other promissory note was for the $23,000 balance that was payable in monthly installments. The mortgage repayment provision provided:
The mortgage further stated that the notes given to secure the purchase price were "to be paid according to the terms and installments as set out above." There was no provision for prepayment.
The McGowans paid the $1,400 note as required and paid monthly installments on the $23,000 note through June 15, 1994. Thereafter, the McGowans stopped making payments. Before discontinuing the payments on the $23,000 note, the McGowans asked Brannon to give them a payoff figure. Brannon told the McGowans that she did not want the indebtedness paid in advance, but that if they insisted on doing so, she wanted the principal amount due plus the interest she would have earned had the note been paid in accordance with its terms. The McGowans never tendered that amount.
Subsequently, the McGowans sued, seeking a judgment declaring that they had the right to prepay, without payment of unearned interest, the promissory note that was payable in monthly installments and that they had the right to secure a release of the mortgage. The McGowans also sought damages for Brannon's refusal to accept a payoff of the note. Brannon counterclaimed for the past due installments (for the months July through December 1994) in the amount of $1,678.50, interest, attorney fees, and costs. The trial court, after conducting an ore tenus hearing, entered a judgment for the McGowans, declaring that they had the right to satisfy the note and mortgage held by Brannon by paying to Brannon the principal amount due after the June payment ($10,039.71), plus interest on that amount at the rate of 12.25% per annum, until the principal was paid and that upon such payment, the note and mortgage would be satisfied in full and Brannon would be required to satisfy the mortgage of record. The judgment also denied the McGowans' claim for damages; denied Brannon's counterclaim; provided that the parties would be responsible for their own attorney fees; and taxed costs against the McGowans. Brannon appealed, contending that the trial court erred in allowing the McGowans to prepay their mortgage, because, *996 she argued, the accurate rule of law is that absent an agreement of the parties, a mortgagor cannot unilaterally force a mortgagee to accept prepayment of a debt.
The Court of Civil Appeals affirmed, noting that "[t]he traditional common law proposition [which was based on the reasoning that allowing prepayment could cause inconvenience to mortgagees who often extend credit as an investment] is that when there is no contrary statutory authority, or agreement between the parties, a mortgagor generally has no right to pay off the obligation before the stated maturity date," but stating that "there has been a trend to change the prevalent common law rule, both statutorily and judicially," citing authorities, including Ala. Code 1975, § 5-19-4(c).[1]Brannon v. McGowan, 683 So. 2d 991, at 992 (Ala.Civ. App.1995).
According to the Court of Civil Appeals, "[T]he better reasoning is found in the opinion of the Pennsylvania Supreme Court [in Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983), a case factually similar to this case], which reversed the common law rule prohibiting prepayment in favor of a presumption that, when loan documents are silent regarding prepayment, the debtor has the right to prepay." 683 So. 2d at 992. In adopting the reasoning of the Pennsylvania Supreme Court in Mahoney, the Court of Civil Appeals held that "the old common law rule [prohibiting prepayment when loan documents are silent regarding prepayment] is inconsistent with another common law rule; absolute restraint of the power of alienation is void as against public policy." 683 So. 2d at 993.
Judge Crawley dissented, maintaining that the court was bound by the common law rule unless it had been abrogated by the legislaturethat any deviation from the common law was within the province of the legislature, not the judiciary. 683 So. 2d at 993.
In addressing the dissent and explaining the majority's deviation from the common law, the majority of the Court of Civil Appeals stated that while the dissent accurately stated the law, "`the common law is not static, but is constantly undergoing change, and extension, to meet changing conditions, due to the ever expanding business and social fabric.'" 683 So. 2d at 993 (quoting Woodmen of the World Life Ins. Soc. v. Guyton, 239 Ala. 216, 220, 194 So. 655, 658 (1940)).
Brannon petitioned for certiorari review, which we granted to determine whether the maker of a promissory note, secured by a real estate mortgage and payable in monthly installments, has a right to prepay the indebtedness, without payment of the unearned interest, and secure the release of the mortgage lien, when loan instruments are silent as to prepayment.
It is undisputed that when Brannon and the McGowans entered into the contract for the sale of the house, the applicable rule of law was the common law rule that when there is no contrary statutory authority and no contrary agreement between the parties, a mortgagor generally has no right to pay off the obligation before the stated maturity date. Even if we agreed with the Court of Civil Appeals that the common law rule pertaining to prepayment needed to be changed, we could not do so in this case without impairing the obligations of the contract between Brannon and the McGowans.
This State has a strong preference for protecting contractual obligations. The Constitution prohibits the impairment of contractual obligations by the legislative and judicial branches of state government. See Art. I, § 22, Ala. Const. of 1901 ("nor any law, impairing the obligations of contracts,... shall be passed by the legislature"), and Art. IV, § 95, Ala. Const. of 1901 ("[t]here can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement"). See International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989); Milton Construction Co. v. State of Alabama *997 Highway Department, 568 So. 2d 784 (Ala. 1990); 17 Am.Jur.2d Contracts § 178 (1964).
Brannon was 69 years old when she entered into this contract; she made it as an investment to supplement her Social Security income in later years. The contract was based upon the then-existing lawthe common law rule that when loan documents are silent regarding prepayment the debtor has no right to prepay. Courts should not change contract law years after parties have entered an agreement based on the law that was in effect when they entered it; rather, such a change should be a matter for the legislature and such a change should apply only to those contracts entered into after the enactment of the legislation.
Ala.Code 1975, § 1-3-1, states:
We find no compelling reason, and no compelling changes in institutions, customs, mores, or conditions, to justify changing the common law rule pertaining to prepayment. Nor do we agree that a prohibition of prepayment constitutes an "absolute restraint" on alienation. The property could be sold or transferred subject to the mortgage, or the debt could be paid and the mortgage satisfied and the property then sold.
The judgment of the Court of Civil Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, SHORES, and COOK, JJ., concur.
KENNEDY, J., concurs in the result.
HOOPER, C.J., and INGRAM, and BUTTS, JJ., dissent.
HOOPER, Chief Justice (dissenting).
The common law rule as stated by the majority is that when there is no contrary statutory authority and no contrary agreement between the parties, a mortgagor generally has no right to prepay a mortgage obligation. However, this rule is based on an inaccurate view of the common law and modern investing. Today, both finance and the law recognize the principle of "present value." According to that generally accepted principle, the value of a future stream of payments today, i.e., its present value, is equal to the total of the future stream of payments discounted by an appropriate interest rate. The purpose of interest is to pay the creditor for the lost present use of money. If the creditor receives the money early, then there may be no need for the interest.
The Supreme Court of Pennsylvania changed the common law rule on the presumption of the right to prepay a mortgage obligation in Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983). The Pennsylvania Supreme Court stated that the common law "presume[d], simply from the absence of a clause so allowing, that a mortgagor could not pay off his debt and alienate his land as he so desired." That Court added: "Instead, we think it wiser to raise a presumption of a right to prepayment of the note where a mortgage is silent as to that right. This presumption could be rebutted by showing a contrary intent mutually manifested by the parties." 503 Pa. at 64-66, 468 A.2d at 461. This Court should adopt this modification of the common law.
The majority reverses a judgment allowing prepayment of the loan. It does so in the name of upholding contract obligations. However, the McGowans are not seeking to violate the contract. They are giving to Brannon the full benefit of the credit arrangement provided for in the contract. A mortgage is a substitute for full payment by the purchaser of the price of real property, and it is intended for the benefit of the purchaser. In other words, instead of making payment in full for a piece of property, the seller allows the purchaser to delay the payment into the future. Prepayment by the purchaser means the purchaser voluntarily gives up that benefit. It is certainly not a detriment to the seller for the purchaser to fulfill the obligation of the sale contract earlier *998 than originally anticipated. Payment in full is more advantageous for both parties.
The majority states that this Court is bound to apply the common law unless it has been abrogated by the legislature and that, even if this Court wished to change the common law, doing so in this case would impair the obligations of the parties. The common law evolved in the courts of England and America as a means of fitting legal principles into the common life of people. It is not an inflexible constitutional provision. Courts alter the common law in order to meet the needs of a changing world. Legal principles remain unchanged; technology, finance, and other things affecting our lives change dramatically. Legal rules are changed to reflect the changed reality without altering principles.
As for the common law rule on prepayment, the history of the rule prohibiting prepayment is not as clear as the majority suggests. Frank S. Alexander, in his historical study of the rule has written:
Frank S. Alexander, Mortgage Prepayment: The Trial of Common Sense, 72 Cornell L.Rev. 288, 289, 292 (1987).
Another principle that equity courts applied from the 14th through the 18th centuries was the rule of reciprocity. That rule stated that because the mortgagee had the right upon default by the mortgagor to demand immediate and full early payment, then the mortgagor also had the right to make early payment in full in order to extinguish the debt. Howard v. Harris, 23 Eng. Rep. 406 (Ch. 1683); Alexander, at 307. That rule changed in the early 19th century when currency fluctuations made it possible for mortgagors to take advantage of mortgagees by prepayment with devalued dollars. "[T]he maker of a note, who had received the whole amount of it, should not be permitted to pay it off with a depreciated currency." Tillou v. Britton, 9 N.J.L. 120, 137 (1827). In the 19th century, the rule of reciprocity came to be, instead, that because the mortgagee could not demand early payment in full without a default by the mortgagor, then the mortgagor could not voluntarily make early payment.
To say that this Court cannot allow for prepayment of a mortgage is to ignore the purposes and reasons that underlie the common law. Redemption, created as an extra-contractual right of the mortgagor, was originally a creation of equity courts. As for equity's approach to prepayment, "equity courts placed the emphasis on the debt itself; the property merely provided security for payment of the debt. Timing of the debt's payment was of little consequence so long as the debt was paid by the date specified." Alexander, at 341. If Brannon wants to continue to receive a stream of monthly payments as income, modern finance allows her to use the amount received upon prepayment to purchase an annuity. That is the beauty of a modern financial system. It allows for more financial freedom, not less. Yet, the majority follows an outdated rule that would force the McGowans to remain in debt although they have the means and the will to free themselves from that debt.
*999 The common law rule applied in this case has a questionable pedigree. It also cannot be reconciled with modern financial practices. Thus, this Court should conform the law to present-day financial and social realities, as the proper application of the common law requires. Considering today's low interest rate, payment of principal only may not fully compensate Brannon. Brannon and the McGowans could negotiate a payment amount that would equal the present value of the remaining mortgage payments. In such an arrangement, and because there is no clause in the contract prohibiting or requiring prepayment, there would be no impairment of the contract obligation. I agree with the Court of Civil Appeals. I would adopt the rule that in the absence of a contrary contractual intent by the parties, the maker has the right to prepay a promissory note, as pre-19th century common law apparently allowed. Therefore, I must respectfully dissent.
INGRAM, J., concurs.
[1] Ala.Code 1975, § 5-19-4(c), provides that in certain circumstances a debtor may prepay before maturity without penalty. That section applies only in the case of creditors who "regularly extend or arrange for the extension of credit." Ala.Code 1975, § 5-19-1(3). Therefore, § 5-19-4(c) is not applicable to this case, because Brannon was not in the business of regularly extending credit or arranging for the extension of credit. | August 9, 1996 |
f05a09da-ea5e-41c2-8883-e1b78e6ddf7c | In Re Nelson | 681 So. 2d 260 | 1860528 | Alabama | Alabama Supreme Court | 681 So. 2d 260 (1996)
In re David Larry NELSON.
1860528.
Supreme Court of Alabama.
September 6, 1996.
No brief filed for defendant.
Jeff Sessions, Atty. Gen., and Sandra J. Stewart, Deputy Atty. Gen., for State.
HOOPER, Chief Justice.
David Larry Nelson was charged with murder made capital by § 13A-5-40(13), Ala. Code 1975. For a defendant to be punished under that section, the defendant must have committed a murder after having been convicted of a first or second degree murder within the preceding 20 years. A jury found Nelson guilty and the judge sentenced him to death by electrocution, after considering the aggravating circumstances listed in Ala.Code 1975, § 13A-5-49. The Court of Criminal Appeals affirmed the conviction and the sentence. Nelson v. State, 681 So. 2d 257 (Ala. Crim.App.1996).
*261 Nelson has not asked this Court to review his conviction and death sentence. In fact, the record shows that Nelson has asked numerous times that he be executed promptly. Nevertheless, this case is before us for an automatic review pursuant to § 13A-5-55 and § 13A-5-53.
Nelson was first convicted for this crime in 1978. However, that first conviction was reversed for a new trial on the mandate of Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392, on remand, 396 So. 2d 645 (Ala.1980), and Ritter v. State, 403 So. 2d 154 (Ala.1981), on remand, 403 So. 2d 158 (Ala.Crim.App.1981), vacated, 454 U.S. 885, 102 S. Ct. 376, 70 L. Ed. 2d 200 (1981). See Nelson v. State, 405 So. 2d 50 (Ala.Crim.App. 1981). Nelson was convicted again and, under the new bifurcated procedures required under Beck, was sentenced to death. The trial court found two aggravating circumstances and no mitigating circumstances. The aggravating circumstances were: (1) that Nelson had previously been convicted of murder in the second degree; and (2) that this present offense was committed in the course of the commission of a felony, specifically, robbery.
Nelson's second conviction was affirmed by the Court of Criminal Appeals and by this Court. Nelson v. State, 511 So. 2d 225 (Ala. Crim.App.1986), aff'd, 511 So. 2d 248 (Ala. 1987), cert. denied, 486 U.S. 1017, 108 S. Ct. 1755, 100 L. Ed. 2d 217 (1988). Nelson then petitioned the United States District Court for the Northern District of Alabama for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. That court conditionally granted the petition unless the State afforded Nelson a new sentencing hearing. The United States Court of Appeals for the Eleventh Circuit affirmed. Nelson v. Nagle, 995 F.2d 1549 (11th Cir.1993).
A new sentencing hearing was held February 14-16, 1994. The jury recommended that Nelson be sentenced to death, and the trial judge sentenced him to death. On May 17, 1994, Nelson filed with the Court of Criminal Appeals a motion seeking to waive appellate review of his conviction and to have his execution date set by this Court.[1] On September 2, 1994, the Court of Criminal Appeals, without an opinion, asked the trial court to determine whether Nelson had properly waived his right to be represented by counsel at prior hearings. In response, the trial court said that Nelson had properly waived it, and the trial court returned the case to the Court of Criminal Appeals, which by an opinion of October 21, 1994, 668 So. 2d 933, transmitted the case to this Court for the setting of an execution date.
On April 11, 1995, this Court, without an opinion, remanded the case to the Court of Criminal Appeals, with instructions to review the death sentence in accordance with the Alabama Death Penalty Act. The Court of Criminal Appeals reviewed the case and remanded it to the trial court for another sentencing hearing because the trial court had not ordered, received, and considered a presentence report, as required by § 13A-5-47(b); had not entered specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, each mitigating circumstance enumerated in § 13A-5-51, and any additional mitigating circumstances offered pursuant to § 13A-5-52; and had not entered specific written findings of fact summarizing the crime committed by the appellant and his participation in it. See the Court of Criminal Appeals opinion of August 18, 1995, 681 So. 2d 252. On remand, the trial Court complied with the directions of the Court of Criminal Appeals and reimposed the conviction and death sentence. The Court of Criminal Appeals again affirmed the conviction *262 and sentence. Nelson v. State, 681 So. 2d 257 (Ala.Crim.App.1996).
In accordance with Ala. R.App. P. 45, we have reviewed the record for any plain error, whether or not it was brought to our attention or to the attention of the trial court. After reviewing the record and the April 19, 1996, opinion of the Court of Criminal Appeals, we find no error in the process leading to the conviction. Moreover, we find that the opinion of the Court of Criminal Appeals addresses the three requirements of § 13A-5-53(a), as well as the three requirements of § 13A-5-53(b).
We have also done a thorough analysis of the three questions suggested in § 13A-5-53(b). As for the first question, we conclude that no passion, prejudice, or other arbitrary factor influenced the imposition of the death penalty. In fact, Nelson himself asked the jury to simply follow the law and to sentence him to death. The second question is whether "an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence." We agree with the trial court that there were two aggravating circumstances and no mitigating circumstances. The two aggravating circumstances were: (1) "[t]he defendant was previously convicted of another capital offense or a felony involving the use or threat of violence to the person"; and (2) "[t]he capital offense was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit [a] robbery." § 13A-5-49(2) and (4). Our independent weighing of the aggravating circumstances, considering the absence of any mitigating circumstances, indicates that death is the proper sentence in this case.
The third question is whether the sentence in this case "is excessive or disproportionate to the penalty imposed in similar cases." See Jenkins v. State, 627 So. 2d 1034 (Ala.Crim.App.1992), aff'd, 627 So. 2d 1054 (Ala.1993); Ex parte Ford, 515 So. 2d 48 (Ala. 1987), cert. denied, 484 U.S. 1079, 108 S. Ct. 1061, 98 L. Ed. 2d 1023 (1988); Morrison v. State, 500 So. 2d 36 (Ala.Crim.App.1985), aff'd, 500 So. 2d 57 (Ala.1986), cert. denied, 481 U.S. 1007, 107 S. Ct. 1634, 95 L. Ed. 2d 207 (1987); Neelley v. State, 494 So. 2d 669 (Ala. Crim.App.1985), aff'd, 494 So. 2d 697 (Ala. 1986), cert. denied, 480 U.S. 926, 107 S. Ct. 1389, 94 L. Ed. 2d 702 (1987); Giles v. State, 632 So. 2d 568 (Ala.Crim.App.1992), aff'd, 632 So. 2d 577 (Ala.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 2694, 129 L. Ed. 2d 825 (1994). After reviewing these cases, we have determined that Nelson's sentence is not excessive or disproportionate.
Furthermore, we have also reviewed the aggravating circumstances and considered the absence of mitigating circumstances, pursuant to Ala.Code 1975, § 13A-5-49, § 13A-5-51, and § 13A-5-52. We conclude that the trial court did not err in sentencing Nelson to death and that the Court of Criminal Appeals did not err in affirming the sentence.
Accordingly, we affirm the judgment of the Court of Criminal Appeals. Upon the release of this opinion and in accordance with Ala. R.App. P. 8(d)(1), an execution date will be set by the entry of an appropriate order.
AFFIRMED.
MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
[1] In its April 19, 1996, opinion, the Court of Criminals Appeals stated:
"At the sentencing hearing before the jury, the appellant offered no evidence in mitigation, and he asked the jury, and subsequently the trial court, to sentence him to death. He also filed a motion with this court seeking to waive appellate review and asking us to transmit this case directly to the Alabama Supreme Court so that that court could set an execution date as soon as possible. Throughout the lengthy proceedings involved in this aspect of this case, the appellant has declined to present any evidence in mitigation, has sought to waive appellate review, and has requested immediate execution. Finally, we note that he has declined to file any brief in this court on his behalf."
681 So. 2d at 258 n. 1. | September 6, 1996 |
9d388f46-3e7b-49cf-bfed-236f5ddb5f50 | Ex Parte Jones | 686 So. 2d 1166 | 1950117 | Alabama | Alabama Supreme Court | 686 So. 2d 1166 (1996)
Ex parte Walter W. JONES and Lois Jones.
Re Walter W. JONES and Lois Jones
v.
THE MONEY TREE, INC., et al.
1950117.
Supreme Court of Alabama.
September 13, 1996.
Rehearing Denied November 22, 1996.
Allen W. Howell of Shinbaum & Howell, Montgomery, and Dale R. Waid, Clanton, for Petitioners.
Robert W. Bradford, Jr. and Elizabeth K. Brannen of Hill, Hill, Carter, Franco, Cole, and Black, P.C., Montgomery, for Respondent First Colonial Insurance Company.
KENNEDY, Justice.
This Court's opinion of May 31, 1996, is withdrawn, and the following is substituted therefor:
Walter Jones and Lois Jones petition for a writ of mandamus directing the trial court to vacate its order granting First Colonial Insurance Company's motion to compel arbitration.
A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order compelling arbitration. Ex parte Alexander, 558 So. 2d 364 (Ala.1990). Mandamus is an extraordinary remedy requiring a showing that there is: "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989).
The Joneses entered into a loan agreement with The Money Tree, Inc., by which they *1167 borrowed $3,012 to purchase an automobile. Money Tree and its loan officer Jimmy Burnett procured a single-premium collateral insurance policy from First Colonial in the amount of $1,600 to cover the automobile. This insurance policy was a separate contract from the loan agreement. The premium was financed as part of the loan.
The car was subsequently destroyed by fire, and First Colonial paid $800 upon the Joneses' filing of an insurance claim. The car had an approximate value of $4,000. Thereafter, the Joneses sued Money Tree, First Colonial, and Jimmy Burnett, alleging fraud and bad-faith failure to pay a claim.
The loan contract between the Joneses and Money Tree contained an arbitration clause. Money Tree moved to stay the proceedings and to compel arbitration; the court granted that motion. First Colonial joined Money Tree's motion and was also granted arbitration. The arbitration clause included in the loan contract between the Joneses and Money Tree reads, in part, as follows:
The Joneses argue that their claims against First Colonial are not subject to arbitration, because, they say, the arbitration agreement exists only between the Joneses and Money Tree. Although the Joneses were informed that collateral insurance was a requirement of the loan, there is no indication that they participated any further in the process by which the insurance was procured. Burnett procured the insurance policy from First Colonial. The Joneses say they received a copy of the First Colonial policy only after their car had been destroyed and they had made a claim against the insurance policy. First Colonial argues that the provisions of the insurance coverage were explained to the Joneses and that that fact is evidenced by the fact that the Joneses signed a loan confirmation sheet acknowledging that the provisions had been explained.
Although the loan contract between the Joneses and Money Tree had an arbitration clause, the form contract issued by First Colonial did not contain an arbitration clause. Therefore, the dispositive issue is: Did the trial court properly compel arbitration as to the Joneses' claim against First Colonial?
We must use general principles of contract interpretation to answer this question. In interpreting the arbitration clause found in the loan contract, we must consider the intent of the parties to that contract, those parties being the Joneses and Money Tree.
Federal law favors the enforcement of arbitration clauses under the Federal Arbitration Act ("FAA"), see 9 U.S.C. §§ 1-15 (1982). However, the FAA does not govern every contract containing an arbitration agreement. In order for the FAA to govern an agreement, (1) there must be a written agreement calling for arbitration and (2) the contract must relate to a transaction involving interstate commerce. Maxus, Inc. v. Sciacca, 598 So. 2d 1376 (Ala.1992). The contract issued by First Colonial does not meet that first requirementit does not contain a written agreement calling for arbitration. Also, we note that the First Colonial insurance contract is signed only by Vance Martin, the president of Money Tree. As stated previously, the Joneses say they never saw the First Colonial contract until after the car had been destroyed.
There is a written arbitration agreement between the Joneses and Money Tree, i.e., between the creditor and the debtors. Those are the parties referred to in the language of the arbitration agreement. The arbitration *1168 agreement is limited to the creditor and debtors in the loan transaction. The Joneses are the debtors and Money Tree is the creditor. First Colonial is not a signatory to the contract containing the arbitration clause, it is not the creditor, and it is not the debtor. The arbitration clause is limited to disputes between the Joneses and Money Tree as the contracting parties.
This Court has clearly held that one must be a signatory to a contract in order to be bound by the contract: "[A] party cannot be required to submit to arbitration any dispute he has not agreed to submit." Old Republic Ins. Co. v. Lanier, 644 So. 2d 1258, 1260 (Ala.1994). In Ex parte Stallings & Sons, Inc., 670 So. 2d 861, 862 (Ala.1995), we held: "`We note that [one of the parties on appeal] was not a party to the stock purchase agreement. Thus, [that party] has no standing to seek enforcement of the arbitration provision therein, and it would be error for the trial court to compel arbitration of claims against [it] under this arbitration provision.'" (Quoting Ex parte Jones, 628 So. 2d 316, 317 (Ala.1993)). Under this reasoning, the Joneses should not be compelled to arbitrate their claims against First Colonial, because First Colonial is not a party to the contract containing the arbitration provision. First Colonial has no standing to seek enforcement of the arbitration provision.
For the reasons stated above, the trial court erred in compelling arbitration of the Joneses' claims against First Colonial. There was no mutual agreement to submit to arbitration the issues between the Joneses and First Colonial. First Colonial is not a party to the contract containing the arbitration agreement, and it is clear from the language of the arbitration agreement that it applies only to the Joneses and Money Tree, the debtors and the creditor. The Joneses have shown a clear, legal right to the writ of mandamus.
OPINION WITHDRAWN; OPINION SUBSTITUTED; WRIT GRANTED.
ALMON, SHORES, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent.
MADDOX, Justice (dissenting).
I concurred with the following holding in the opinion that this Court today withdraws:
That original opinion was based upon well-reasoned federal law.[1] This Court now, on its own motion, grants rehearing and reaches a directly contrary result. I therefore dissent.
The Joneses signed a loan agreement with The Money Tree, Inc., in order to purchase an automobile. This loan agreement contained an agreement to arbitrate, which reads, in pertinent part:
(Emphasis added.)
When the Joneses signed the agreement containing the arbitration clause, the loan officer, an employee of Money Tree, sold the Joneses an insurance policy issued by First Colonial Insurance Company. Even though the insurance agreement was separate from the loan agreement, the Joneses were made aware of the specific terms of the agreement, and the premiums for the insurance policy were financed as part of the loan.
The majority now holds that the insurance contract between the Joneses and Colonial Insurance Company was a separate agreement and, therefore, was not subject to the arbitration clause contained in the loan agreement, because the Joneses did not sign the insurance agreement.
The Federal Arbitration Act ("F.A.A."), 9 U.S.C. § 1 et seq., provides, in pertinent part:
9 U.S.C. § 2. Under 9 U.S.C. § 3, a party may seek a stay of proceedings pending arbitration and, in order to do so, must show (1) that a valid written arbitration agreement exists; (2) that the issues in the action are referable to arbitration under the agreement; and (3) that the party is not in default in seeking arbitration.[2] Under the provisions of § 2 of the F.A.A., a party must show that the agreement in question involves interstate commerce. Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995).
In this particular case, neither party disputes that a valid written arbitration agreement is in existence and that the contract involves interstate commerce. In fact, there could be no argument on that point, because the United States Supreme Court, in Allied-Bruce Terminix held that the F.A.A.'s reach coincided with that of the Commerce Clause. Allied-Bruce Terminix, 513 U.S. at 265-66, 115 S. Ct. at 835.
The ultimate question in this case, which I think this Court correctly decided in its original opinion, is whether one must be a signatory to a contract in order for the provisions of the F.A.A. to apply to it. Several federal courts have addressed this issue, and have held, based upon the theory of estoppel, that "[a] signatory was bound to arbitrate with a nonsignatory at the nonsignatory's insistence because of `the close relationship between the entities involved, as well as the relationship of the alleged wrongs to the nonsignatory's obligations and duties in the contract ... and [the fact that] the claims were `intimately founded in and intertwined with the underlying contract obligations.'" Thomson-CSF, S.A. v. American Arbitration Association, 64 F.3d 773, 779 (2d Cir.1995); see also Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993), cert. denied, 513 U.S. 869, 115 S. Ct. 190, 130 L. Ed. 2d 123 (1994); McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984); J.J. Ryan & Sons, Inc. v. *1170 Rhone Poulenc Textile, S.A., 863 F.2d 315, 320-21 (4th Cir.1988).
There was a close relationship between the Joneses and First Colonial, which is evidenced by the fact that the premiums for the policy were paid through the loan, the fact that Money Tree's employee sold the policy simultaneously with the execution of the loan agreement, and the fact that the policy limitations and specific terms were acknowledged in a separate document executed with the loan agreement.
Neither party disputes that the Joneses signed the loan agreement, which references the insurance agreement, and that they did not sign the insurance agreement. The Joneses, however, argue that Money Tree misrepresented the terms of the insurance agreement and that the misrepresentation resulted in the vehicle's being underinsured. Nevertheless, the Joneses accepted $800 from First Colonial for damage to their car.
It appears clear to me that federal courts have been "[w]illing to estop a signatory from avoiding arbitration with a nonsignatory when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed." Thomson, 64 F.3d at 779.
It is without question that the dispute at issue in this case significantly relates to the loan agreement. The arbitration clause found within the loan agreement provides: "All disputes, controversies or claims of any kind and nature between creditor and debtor arising out of or in connection with the within agreement ... shall be submitted to arbitration." In addition to the language found in the arbitration agreement, the record shows that the insurance contract was entered into simultaneously with the loan agreement and that the premiums were included as a part of the loan payments.
I believe the insurance contract in question is "intimately founded in and intertwined with the underlying contract obligations [the loan agreement]." McBro Planning, 741 F.2d at 344. Thus, because of the close relationship between the two agreements, the terms of the arbitration clause found in the loan agreement apply to the insurance agreement.
In summary, the majority rehears this case ex mero motu and holds that the Joneses are clearly entitled to relief, even though it had held originally that the Joneses were clearly not entitled to the relief they sought. What has changed? Nothing, except that this Court has changed its mind. Although this Court has the power to rehear a case on its own motion, that power should be exercised only in the rarest of circumstances, especially when neither party requests a rehearing and points out wherein the Court has erred.
Moreover, this Court has addressed the question of the scope of an arbitration clause in Ex parte Gates, 675 So. 2d 371 (Ala.1996). In that case, the purchasers of a mobile home sued the vendor of the mobile home, the manufacturer of the mobile home, and the vendor's salesman, alleging fraud in the sale of the mobile home, breaches of warranties, and negligent or wanton installation. The trial court ordered the dispute submitted to arbitration as to all parties, even though the manufacturer and the vendor's salesman were not signatories to the agreement containing the arbitration clause. The plaintiffs asked this Court for a writ of mandamus directing the trial court to set aside its arbitration order. This Court denied the writ, saying:
Gates, 675 So. 2d at 374-75. It appears to me that the holding of this Court in Gates, which compelled the buyers of a mobile home to arbitrate their claims against the manufacturer and the vendor's salesman, neither of whom was a signatory to the purchase agreement, is consistent with the federal decisions that I cite in this dissent. Furthermore, Gates has been criticized in the Alabama Trial Lawyers Journal, where Lanny Vines wrote:
Lanny Vines, Recent Civil Decisions, Ala. Trial Law. J., Summer 1996, at 24-26.
Certainly, the parties and those who rely on this Court's decisions, including the public, should have confidence that final decisions of this Court are, in fact, final. That is especially true when the decision is based on sound principles of law, as in this case.
Based on the foregoing, I must respectfully dissent.
HOOPER, C.J., concurs.
[1] Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985).
[2] The F.A.A. provides, at 9 U.S.C. § 3: "If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration." See Complaint of Hornbeck Offshore Corp., 981 F.2d 752, 754 (5th Cir.1993). | September 13, 1996 |
734322cf-0b72-44ac-b07e-78134f1b2a98 | Hatch v. Health-Mor, Inc. | 686 So. 2d 1132 | 1950259 | Alabama | Alabama Supreme Court | 686 So. 2d 1132 (1996)
Lewis HATCH
v.
HEALTH-MOR, INC.
1950259.
Supreme Court of Alabama.
August 30, 1996.
Rehearing Denied November 22, 1996.
David R. Donaldson of Hogan, Smith & Alspaugh, P.C., Birmingham, and Jonathan W. Gathings, Moody, for Appellant.
W. Scott McGarrah of McDaniel, Hall, Conerly & Lusk, P.C., Birmingham, for Appellee.
KENNEDY, Justice.
The plaintiff, Louis Hatch, appeals from a summary judgment entered in favor of the defendant, Health-Mor, Inc., on his claims related to his purchase of a vacuum cleaner manufactured by Health-Mor.
Among the claims Hatch asserted was a claim alleging a civil conspiracy to defraud. As to this claim, Hatch does not contend that Health-Mor is vicariously liable for the actions of co-defendants, with whom Hatch had dealt directly in buying the vacuum cleaner, but that Health-Mor is liable in its own stead as a co-conspirator of those defendants.
Health-Mor's motion for summary judgment related only to claims based on the doctrine of respondeat superior. We agree with Health-Mor that the civil conspiracy claim was not properly before the trial court when it ruled on the summary judgment motion, but not, as Health-Mor contends, because Hatch failed to produce evidence on the claim. Simply stated, in responding to the summary judgment motion, Hatch was under no burden to produce evidence to support that claim, because Health-Mor's motion did not relate to that claim.
Hatch does not dispute that as to his other claims, the trial court properly entered the summary judgment in favor of Health-Mor. Accordingly, as to those claims we affirm. However, we agree with Hatch that it was error for the trial court to enter a summary judgment as to all of his claims, because one claim, the claim alleging a civil conspiracy to defraud, was not before the trial court on the summary judgment motion. As to that claim, the summary judgment is reversed. See Henson v. Mobile Infirmary Ass'n, 646 So. 2d 559, 562 (Ala.1994); Parr v. Goodyear Tire and Rubber Co., 641 So. 2d 769 (Ala. 1994).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, and COOK, JJ., concur. | August 30, 1996 |
ef6e939a-0b40-4525-9d72-bd302cefa478 | Ex Parte Brown | 686 So. 2d 409 | 1941150 | Alabama | Alabama Supreme Court | 686 So. 2d 409 (1996)
Ex parte Raymond Eugene BROWN.
Re Raymond Eugene BROWN
v.
STATE.
1941150.
Supreme Court of Alabama.
September 13, 1996.
Rehearing Denied November 22, 1996.
*411 William R. Blanchard of Blanchard & Calloway, P.C., Montgomery, and Charles P. Hollifield, Montgomery, for Petitioner.
Jeff Sessions, Atty. Gen., and William D. Little, Asst. Atty. Gen., for Respondent.
COOK, Justice.
This Court granted Raymond Eugene Brown's petition for the writ of certiorari to review the judgment of the Court of Criminal Appeals affirming his conviction of capital murder and his sentence of death. See Brown v. State, 686 So. 2d 385 (Ala.Cr.App. 1995).
This is the third time this case has been before us. On May 13, 1988, Brown was convicted of two capital murders, based on the deaths of Linda LeMonte and her daughter, Sheila Smoke. After the sentencing hearing, the jury unanimously recommended death by electrocution. The trial court accepted the advisory verdict and sentenced Brown to death. In Brown v. State, 571 So. 2d 345 (Ala.Cr.App.1990), the Court of Criminal Appeals reversed Brown's convictions and his sentence, holding that the trial court's refusal to individually voir dire potential jurors regarding possible prejudice from pretrial publicity had denied Brown the due process guaranteed under the United States Constitution. This Court granted the State's petition for the writ of certiorari to the Court of Criminal Appeals, but after hearing oral argument quashed the writ as improvidently granted. Brown v. State, 571 So. 2d 353 (Ala.1990).
Subsequently, the State sought certiorari review in the United States Supreme Court. On June 10, 1991, that Court vacated the judgment of the Court of Criminal Appeals and remanded the cause for reconsideration in light of Mu`Min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991) (addressing federal constitutional requirements as to voir dire on the issue of pretrial publicity). Alabama v. Brown, 501 U.S. 1201, 111 S. Ct. 2791, 115 L. Ed. 2d 966 (1991). On July 26, 1991, the Court of Criminal Appeals reinstated its judgment reversing the conviction and sentence. Brown v. State, 586 So. 2d 991 *412 (Ala.Cr.App.1991). On April 10, 1992, this Court reversed that judgment, holding that the trial judge's general voir dire complied with the constitutional requirements articulated in Mu'Min. Brown v. State, 632 So. 2d 14 (Ala.1992).
The Court of Criminal Appeals thereafter again remanded this cause to the trial court on the authority of Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991),[1] with directions that the State be required to justify its use of 20 of its 23 peremptory strikes to remove black veniremembers from the prospective jury panel. Brown v. State, 632 So. 2d 17 (Ala.Cr.App.1992). The trial judge conducted a hearing in accordance with the remand order and, with the following order, concluded that the State's explanations were race-neutral:
On the trial court's return to the remand, the Court of Criminal Appeals affirmed Brown's conviction and sentence of death. Brown v. State, 686 So. 2d 385 (Ala.Cr.App. 1995). We have reviewed all of the issues raised by Brown. We find that many of the issues raised in this Court were adequately addressed in the January 13, 1995, opinion of the Court of Criminal Appeals. We address the following issues:
Brown challenges the trial court's holding that the State offered race-neutral reasons for using 20 of its peremptory strikes to remove blacks from the jury venire. This Court has written:
Bui v. State, 627 So. 2d 855, 856 (Ala.1992). The Court of Criminal Appeals, in affirming *413 the trial court's findings and holding on this issue, stated, in part:
Brown v. State, 686 So. 2d at 390-392. At the Batson hearing, the district attorney explained that he thought the evidence against Raymond Eugene Brown was overwhelming and that, in his opinion, the State's main burden at trial would be to "debunk the insanity defense." When offering his reasons for his strikes, he stated:
Supplemental Record on Return to Remand, pp. 21-26. We review the reasons given by the prosecutor in light of the trial court's finding that those reasons were race-neutral. The trial court's finding will not be disturbed unless found to be clearly erroneous:
Bui v. State, 627 So. 2d at 859. As already noted, the trial in this case occurred in 1988, before the United States Supreme Court's decision of Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); therefore, we are reviewing the striking of a 1988 jury that occurred without the benefits of the hindsight we now have concerning the development of the law in this area since Powers. Our analysis of the district attorney's strikes, set out below, indicates that the trial court's finding of no discrimination was not clearly erroneous.
The district attorney's first two strikes were against white veniremembers. The State's third strike was against Juror 127. At the Batson hearing, Mr. Evans[2] indicated that this veniremember was struck because of her age (20) and because she was single with no children. He further indicated that there was some question with regard to her employment. This Court has recognized that "the age rationale is highly suspect because of its inherent susceptibility to abuse. Batson, 476 U.S. at 106, 106 S. Ct. at 1728 (Marshall, J., concurring)." Ex parte Bird, 594 So. 2d 676, 683 (Ala.1991). In fact, "[a] mere summary declaration that age was a factor in the decision to strike is, therefore, constitutionally deficient and warrants reversal. Owens v. State, 531 So. 2d 22, 26 (Ala. Crim.App.1987)." Bird, at 683. Despite its susceptibility to misuse, however, this Court has also noted:
*417 Bird, at 682-83. The district attorney explained why he thought age was an important factor to consider when selecting jurors for this particular case. Again, with regard to age, the district attorney testified:
Supplemental Record on Return to Remand, pp. 25-26. In addition to Juror 127, the prosecutor indicated that the following black veniremembers were also struck, at least in part, because of their age: Juror 37 (age 26); Juror 40 (age 27); Juror 79 (age 28); Juror 117 (age 22); Juror 143 (age 21); and Juror 137 (age 21). Of those veniremembers, Jurors 127,[3] 37, 40, 117, and 143 were also single, and Jurors 37, 40, 117, 143, and 137 had no children.[4] Juror 134 (age 30), was likewise struck because she was childless and single, and Juror 71 was struck because she was single. The reasoning of the district attorney for striking single veniremembers and those with no children was the same reasoning he offered for considering age to be an important factor, i.e., that, in light of the defense of insanity in this case and because a child had been murdered, the district attorney wanted jurors with as much maturity and responsibility as possible.
Although the district attorney fully explained his reasoning and how that reasoning fit in with his trial strategy, the defense contends that the striking of these jurors is highly suspect because Juror 39 (age 23) and Juror 45 (age 23), both white, ultimately served on the jury. With regard to Juror 45, the district attorney explained:
Supplemental Record on Return to Remand, p. 63. Because he thought he had a connection with this juror and her family, we find that the prosecution's failure to strike Juror 45 was not racially discriminatory. With regard to Juror 39, the district attorney gave this reason for not striking her:
Supplemental Record on Return to Remand, pp. 62-63. Again, the district attorney articulated his reasons for not striking this veniremember, and those reasons do not support the defendant's allegations of disparate treatment on the basis of race. Juror 126 (age 26) also was not struck. The district *418 attorney gave the following reasons for not striking her:
Supplemental Record on Return to Remand, p. 64. The district attorney adequately explained his reasons for not striking Juror 126 while at the same time striking black veniremembers of a similar age.
The district attorney also struck Juror 148 (a black female) who had majored in psychology in college. In explaining his reasons for striking Juror 148, the district attorney testified:
Supplemental Record on Return to Remand, pp. 37-38. We conclude that the reasons given for striking this veniremember were race-neutral. In so holding, we also note that the district attorney's second strike was Juror 44 (a white female), whose husband was a psychologist. With regard to Juror 44, he stated:
Supplemental Record on Return to Remand, pp. 32-33. With regard to Juror 148, therefore, not only did the district attorney strike a white member of the jury venire for the same reasons, (this, in and of itself, indicates neutrality, see Ex parte Branch, 526 So. 2d 609, 623 (Ala.1987)), but he also explained that his trial strategy was to attack the insanity defense. A major part of that strategy included attempting to discredit theories that persons in the psychology field would tend to rely on. In that same vein, the district attorney struck all jurors who worked in or were connected with hospitals with mental facilities, including Jurors 70 and 22. We find those reasons to be race-neutral.
The district attorney said he struck Juror 44 because she had a larceny conviction and Jurors 46 and 72 because they had fraud convictions. Judge Taylor, in Spencer v. State, 659 So. 2d 1000 (Ala.Cr.App.1994), wrote:
659 So. 2d at 1002. These strikes were clearly race-neutral.
The prosecution struck Juror 2. The district attorney testified that she was struck because she lived at the same address as a relative who had a larceny conviction.
Ex parte McNair, 653 So. 2d 353, 356 (Ala. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1121, 130 L. Ed. 2d 1084 (1995). This same veniremember also stated that she was a widow and did not want to serve "because she could not afford to take time off work." We find that the district attorney's reason for striking this veniremember was race-neutral.
The State struck Juror 28 because of her deep religious beliefs[5]; however, we note that Juror 7 (white) was also struck, at least in part, because of his religious beliefs. When questioned at the Batson hearing, Mr. Evans testified:
Supplemental Record on Return to Remand, p. 66. Such similar treatment of black and white veniremembers is evidence of neutrality. Ex parte Branch, 526 So. 2d 609, 623 (Ala.1987).
Juror 19 was struck because she had a 1957 liquor prohibition violation and because she had a loud voice.
Scott v. State, 599 So. 2d 1222, 1229 (Ala.Cr. App.1992), writ denied, 599 So. 2d 1229 (Ala. 1992), overruled on other grounds, Smith v. State, 612 So. 2d 1314 (Ala.Cr.App.1992). The defense contends that the prosecution's strike of Juror 19, in particular, was racially motivated. In support of that contention, the defense points to the fact that the foreman of the jury had had a 1986 marijuana conviction and was not struck. Mr. Evans explained his failure to strike Juror 68:
Supplemental Record on Return to Remand, pp. 66-67. The defense indicated that its notes reflected that Juror 68 was not an engineer and that he had had only one year of college; however, there is no indication in the record on return to remand as to which assertion was correct, nor is there any indication *420 that the State had acted under anything other than a belief that Juror 68 was, in fact, an engineer. A prosecutor can strike based on a mistaken belief, see Taylor v. State, 666 So. 2d 36, 42 (Ala.Cr.App.1994); therefore, it is logical that a prosecutor may also decide, based on a mistaken belief, not to strike a veniremember. Because the discrepancy in the way these two jurors were treated was adequately explained, we conclude that the strike of Juror 19 was race-neutral.
Finally, the State struck Juror 87 because of a 1986 violation of the child restraint law, coupled with a minor traffic offense, and struck Juror 121 because she was employed at Brockway Glass, where the district attorney's office had conducted a major embezzlement investigation. With regard to Juror 87, the State indicated some concern regarding the child restraint violation, because the facts of this present case involved the murder of a child. With regard to Juror 121, the prosecutor indicated a pending investigation at Brockway glass. While these strikes cause us the most concern, we have considered them in light of this Court's opinion in Bui, and from the record we infer that the State did not strike these veniremembers for racial reasons. Again, we note:
Ex parte McNair, 653 So. 2d 353, 357-58 (Ala.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1121, 130 L. Ed. 2d 1084 (1995), quoting Jelks v. Caputo, 607 So. 2d 177, 179 (Ala. 1992). Considering that this case was tried before Powers v. Ohio was decided; that this case involved a white defendant and two white victims and, according to the findings of the trial court, "had no racial overtones"; that over four years had elapsed between the trial and the Batson hearing, where the district attorney was required to give his reasons for his peremptory strikes; and that three blacks served on the jury, we do not find the trial judge's ruling to be clearly erroneous.
Brown also argues that the trial court failed to "life qualify" the jury. Relying on Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992), Brown contends that because the defense was not given the opportunity to find out if potential jurors would automatically vote for the death penalty if Brown was convicted, his sentence of death cannot stand. We disagree. In Morgan, the United States Supreme Court said:
504 U.S. at 731, 112 S. Ct. at 2230-31. Brown requested that the following questions be asked of the jury veniremembers (the filing that contained the questions also contained the statements included here):
With regard to the death penalty, the trial court asked the venire the following questions:
RT. 48-51. To the last two questions, there was no response from anyone on the venire. The State argues that the questions asked by the trial judge met the requirements of Morgan v. Illinois and were substantially the same initial inquiry the defense requested. Because no one responded to the questions, the State contends, there was no need to ask further questions. In addition, the State points out that Brown did not object to the failure of the court to ask "life qualifying" questions. While the failure to object does not prevent us from reviewing this issue, we review it under the "plain error" standard. Kuenzel v. State, 577 So. 2d 474 (Ala.Crim. App.1990), aff'd, 577 So. 2d 531 (Ala.1991), cert. denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991). Pursuant to that standard, this Court has held that the failure to ask reverse-Witherspoon questions sua sponte does not rise to the level of plain error. See Dill v. State, 600 So. 2d 343, 363 (Ala.Crim.App.1991), aff'd, 600 So. 2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S. Ct. 1293, 122 L. Ed. 2d 684 (1993), citing Henderson v. State, 583 So. 2d 276 (Ala.Crim. App.1990). Brown requested the "life qualifying" question if there were veniremembers who answered that they were strongly in *422 favor of the death penalty. No one answered the trial court's question in the affirmative. The trial judge, therefore, in not going further with questions in that vein, was doing exactly what was requested of him by the defense. The defense did not object to the trial court's failure to question the veniremembers further; no plain error occurred.
Brown contends that the trial judge, when instructing the jury on the charges of capital murder, did not instruct the jury regarding the element of intent. Our review of the overall instructions to the jury indicates otherwise. The judge charged the jury as follows:
R.T. at 1054-57. Brown argues that while the trial judge charged the jury regarding intent as to murder, his failure to include a charge on intent as to capital murder brings this case within the purview of Starks v. State, 594 So. 2d 187 (Ala.Cr.App.1991). In Starks, Judge Bowen, writing for the Court of Criminal Appeals, stated:
*423 "Under Alabama law, there are three forms of murder: `intentional murder,' defined in § 13A-6-2(a)(1); `reckless murder,' defined in § 13A-6-2(a)(2); and `felony murder,' defined in § 13A-6-2(a)(3). However, the only form of murder that will support a conviction for the capital offense with which the appellant was charged is intentional murder; neither reckless murder nor felony murder will suffice. § 13A-5-40(b); Bui v. State, 551 So. 2d 1094, 1115 (Ala.Cr.App.1988), affirmed, 551 So. 2d 1125 (Ala.1989), vacated on other grounds, 499 U.S. 971, 111 S. Ct. 1613, 113 L. Ed. 2d 712, remanded on other grounds, 627 So. 2d 848 (Ala.1991). See also Connolly v. State, 500 So. 2d 57, 62 (Ala.Cr.App.1985) (doctrine of felony murder `has no place in securing a conviction' for capital robbery-murder), affirmed, 500 So. 2d 68 (Ala.1986); Daniel v. Thigpen, 742 F. Supp. 1535, 1549 (M.D.Ala.1990) (reckless murder not sufficient to support a conviction where defendant was charged with the capital offense of murder of a police officer under former § 13A-5-31(a)(5)).
". . . .
"At the beginning of his charge, the trial judge read the indictment, which charged the appellant with intentional murder. Shortly thereafter, however, he discussed the elements of the charged capital offense using only the term `murder.' He clearly did not include intent when enumerating the elements of the capital offense and stated that the term `murder' would be defined later. Subsequently, when he did define the term `murder,' he used both the intentional form found in § 13A-6-2(a)(1) and the felony murder form found in § 13A-6-2(a)(3). Immediately after providing this dual definition of `murder,' the trial judge referred to the charged offense of `murder occurring in the commission or attempted commission of a dangerous felony' and then the `lesser included offense of murder.' (Emphasis added.) The trial judge never instructed the jury that, in order to convict the appellant of the capital offense, it must find that he intentionally killed [the victim]. Furthermore, the trial judge failed to clearly distinguish the elements of the charged capital offense from those of the lesser included offense of felony murder."
594 So. 2d at 193-94. As in Starks, the trial judge in this case made no reference to the element of intent when charging the jury on capital murder; however, unlike the situation in Starks, in this case there was only one definition of "murder" given to the jury that "a person commits the crime of murder if with intent to cause the death of another person he causes the death of that person, or of another person." R.T. at 1057. This definition immediately followed the charge regarding capital murder. In Starks, the instructions to the jury were confusing because the jury was given not only the definition of "murder," but also the definition of "felony murder." The Court of Criminal Appeals aptly pointed out in Starks that "the trial judge failed to clearly distinguish the elements of the charged capital offense from those of the lesser included offense of felony murder." Starks, 594 So. 2d at 193-94. In Brown's case, however, there being no charge of felony murder to cause confusion, we conclude that the trial court's instructions, when considered in their totality, could not have caused the jury to believe that the element of intent was not a requirement for finding the defendant guilty of capital murder.
We have considered each of the issues raised in the defendant's brief and we have searched the record for "plain error." We have found no reversible error.[6] Furthermore, *424 pursuant to § 13A-5-53(b), we have independently weighed the aggravating and mitigating circumstances and have considered the appropriateness of the death penalty in this case as compared to other capital cases. Having done so, we conclude that the judgment of the Court of Criminal Appeals affirming Brown's convictions and sentence of death by electrocution should be affirmed.
AFFIRMED.
HOOPER, C.J., and ALMON,[*] SHORES, KENNEDY, INGRAM, and BUTTS,[*] JJ., concur.
MADDOX and HOUSTON, JJ., concur only in the result as to Issue I (the Batson issue) and concur as to the other issues.
[1] In Powers v. Ohio, the Supreme Court held that a defendant may object to race-based exclusions of venirepersons through peremptory strikes whether or not the defendant and the excluded person are of the same race. The Powers decision was released after the trial in this case.
[2] When this case was tried in 1988, Jimmy Evans was the district attorney; however, at the time of the Batson hearing, Mr. Evans was no longer district attorney, but was attorney general for the State of Alabama. For the purposes of this opinion, we will refer to Mr. Evans as the district attorney, because it was in that capacity that he tried this case.
[3] The defense attorneys contended at the hearing that their notes indicated that this juror was married. Nothing in the record indicates that at the time of the strikes the district attorney did not, in good faith, rely on the belief, albeit mistaken, that Juror 127 was single. "`"A prosecutor may strike from mistake, as long as the assumptions involved are based on an honest belief and are racially neutral."'" Reese v. City of Dothan, 642 So. 2d 511 (Ala.Cr.App.1993)." Taylor v. State, 666 So. 2d 36, 42 (Ala.Cr.App.1994).
[4] The district attorney also apparently thought that Juror 79 did not have children. The record indicates that he may have been mistaken in that regard.
[5] Juror 137, discussed above, was also struck, in part, because of his religious beliefs. We have already determined that the striking of that juror was race-neutral, based on his age and the fact that he had no children.
[6] In addition to raising issues concerning his conviction and sentence, Brown also challenges the constitutionality of § 15-12-21, Ala.Code 1975, which caps attorney fees for out-of-court work in capital cases at $1,000. This challenge has been extensively discussed and has been rejected. See Smith v. State, 581 So. 2d 497, 526-29 (Ala.Crim.App.1990), reversed on other grounds, 581 So. 2d 531 (Ala.1991), relying on Ex parte Grayson, 479 So. 2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 157 (1985); Sparks v. Parker, 368 So. 2d 528 (Ala. 1979), appeal dismissed, 444 U.S. 803, 100 S. Ct. 22, 62 L. Ed. 2d 16 (1979); and our more recent opinion in May v. State, 672 So. 2d 1310 (Ala. 1995).
[*] Although Justice Almon and Justice Butts were not present at oral argument, they have listened to the tape of that oral argument. | September 13, 1996 |
ec8e4a6f-7e0c-4123-8f72-47aa4f31764e | Ex Parte Pielach | 681 So. 2d 154 | 1941879 | Alabama | Alabama Supreme Court | 681 So. 2d 154 (1996)
Ex parte Janet Terry PIELACH and Frank S. Pielach, Jr.
(Re Josefa TERRY v. Janet Terry PIELACH and Frank S. Pielach, Jr.).
1941879.
Supreme Court of Alabama.
July 12, 1996.
J. G. Speake, Moulton, for Petitioners.
Thomas B. Denham of Denham & Ford, P.C., Moulton, for Respondent.
KENNEDY, Justice.
Josefa Terry sued Janet Terry Pielach and her husband Frank S. Pielach, alleging that a property conveyance from Josefa's now deceased husband, Grady L. Terry, to Janet and Frank was void under § 6-10-3, Ala. Code 1975. After ore tenus proceedings, the trial court held that the conveyance was not void under § 6-10-3, because, it held, Josefa had abandoned her homestead interest in the property. The Court of Civil Appeals disregarded the facts found by the trial judge in the ore tenus proceedings and reversed, holding for Josefa. See Terry v. Pielach, 681 So. 2d 152 (Ala. Civ. App. 1995). We granted certiorari review in order to determine whether Josefa had a valid homestead interest.
We note that under the ore tenus standard of review, the trial court's findings of fact based on oral testimony, and a judgment based on those findings, are given a presumption of correctness. A judgment based on such findings will not be reversed unless it is shown to be plainly and palpably wrong. Federal Home Loan Mortgage Corp. v. Bates, 644 So. 2d 925 (Ala.1994). The appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court's decision is supported by reasonable inferences to be drawn from the evidence. Ex parte Kent Corp., 641 So. 2d 242 (Ala.1994). The reason for giving such *155 deference to the trial judge's findings based on disputed evidence in ore tenus proceedings is that the trial judge has the benefit of observing the witnesses' manner and demeanor and has the better opportunity to pass upon the credibility of their testimony. Charles Israel Chevrolet, Inc. v. Walter E. Heller & Co., 476 So. 2d 71 (Ala.1985).
Josefa and Grady were married in 1969 in Illinois. In 1977, Grady retired and moved to Alabama, where the property in question was located. The following year, Josefa also moved to Alabama. However, Josefa moved back to Illinois in 1985. In 1988, the property was deeded to Grady by another family member. In 1991, Grady deeded the property to his daughter and son-in-law, Janet and Frank Pielach.
At trial, Josefa contended that the property was homestead property and that she did not sign the deed or assent to the conveyance to Janet and Frank, as is required by § 6-10-3.
The trial court found that Josefa had lived with Grady sporadically after he returned to Alabama, but that she did not occupy the residence in issue with Grady after he acquired it in 1988. The trial court found that Josefa voluntarily left Alabama and established a residence in Chicago, Illinois. The trial court also found that although Josefa briefly visited Grady before his death in 1992, she had failed to demonstrate any intent to return to Alabama after leaving in 1985. The record bears out that she did not attend Grady's funeral and that she has not returned to the state except for this proceeding. The trial court held that the evidence demonstrated a fixed intent on Josefa's part to abandon any interest she might have had in the property, by her permanent residency in Illinois and her absence from Alabama for approximately seven years before filing this action and nine years before these proceedings took place.
In Gowens v. Goss, 561 So. 2d 519 (Ala. 1990), the wife had waited 17 years to assert rights in the property. We held that the wife had lacked an intention to return to the property and to claim it as her homestead, and, thus, that Alabama law, which provides that the owner may not alienate the homestead without the voluntary signature and assent of the spouse, was inapplicable. Josefa voluntarily left the state seven years before Grady's death and established a permanent residence elsewhere; her actions constitute more than a temporary absence from the property.
The Court of Civil Appeals erroneously substituted its judgment for that of the trial court, because the trial court's finding that Josefa had abandoned her homestead interest, based on disputed evidence, was amply supported by the record. We must reverse the judgment and remand this case to the Court of Civil Appeals for an order or proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, COOK, and BUTTS, JJ., concur. | July 12, 1996 |
833165f0-e23d-4a25-823e-ee36d1a8904c | Ex Parte Bruner | 681 So. 2d 173 | 1950451 | Alabama | Alabama Supreme Court | 681 So. 2d 173 (1996)
Ex parte Anne BRUNER and James Bruner, individually and as administratrix and administrator of the Estate of James Holland Bruner, deceased.
(Re Anne BRUNER and James Bruner, etc. v. Thomas H. CAWTHON, M.D., F.A.C.S., P.C., et al.).
1950451.
Supreme Court of Alabama.
August 30, 1996.
James H. Tipler of Tipler Law Firm, Andalusia, for petitioners.
Thomas H. Keene, Fred W. Tyson and N. Wayne Simms, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for respondent.
PER CURIAM.
The writ of certiorari is quashed as improvidently granted.
In quashing the writ, however, this Court disapproves the reliance of the Court of Civil Appeals on Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991), and Purkett v. Elem, ___ U.S. ___, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995). Those federal cases do not control Alabama's peremptory challenge procedure, which is based on adequate and independent state law.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
SHORES, KENNEDY, INGRAM, and BUTTS, JJ., concur.
COOK, J., concurs specially.
HOOPER, C.J., and MADDOX, ALMON, and HOUSTON, JJ., concur in the result.
COOK, Justice (concurring specially).
I concur in the decision to quash the writ of certiorari as improvidently granted. However, I am compelled to disagree expressly with two views presented by Justice Maddox in his special concurrence regarding the procedures Alabama has developed to eliminate discrimination in petit jury selection. The first area of disagreement involves his premise that the procedure developed in this state is grounded on, and controlled by, Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its federal court progeny. The second area is his conclusion that in Alabama the burden of proof of discrimination, which is on the opponent of the strike, is equivalent to the one currently required by the United States Supreme Court. I shall address each of these conclusions more fully in the following sections.
The first point on which I disagree with Justice Maddox is his premise that Batson forms the peremptory challenge framework *174 for Alabamaif not for every state in the country. According to this premise, Alabama's framework is based on federal law. Thus, Justice Maddox states that in Ex parte Bird, 594 So. 2d 676 (Ala.1991), and Millette v. O'Neal Steel, Inc., 613 So. 2d 1225 (Ala. 1992), we were "merely attempting to follow the Batson standard set forth by the United States Supreme Court." 681 So. 2d at 185.
Justice Maddox's premise is consistent with the rationale of the Court of Civil Appeals, which refused to analyze the Bruners' claims of discrimination in the selection of their jury under the procedure this Court outlined in Millette. In particular, the Court of Civil Appeals stated: "Legally, the analysis used in Millette has been superseded. Since Millette was decided three years ago, the United States Supreme Court has [in Purkett v. Elem, ___ U.S. ___, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995)] substantially altered what the proponent of a peremptory strike must do in order to survive a Batson challenge." Bruner v. Cawthon, 681 So. 2d 161 (Ala.Civ.App.1995).
However, the rationale of the Court of Civil Appeals, like Justice Maddox's premise, incorrectly assumed that Alabama's peremptory challenge framework is a matter of federal law. Ignored is the fact that the movement to reform the rules relating to discrimination in jury selection was initially a state court movement. This fact was made clear in Batson itself, which was decided only after a number of state courts had already taken the initiative in ameliorating the harsh rule of Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965).[1] More specifically, Batson explained that two United States Circuit Courts of Appeals had recently "[f]ollow[ed] the lead of a number of state courts construing their State's Constitution" to challenge as discriminatory peremptory strikes based on evidence supplied in the "particular case," rather than requiring, as did the federal standard, proof of "systematic exclusion of blacks." Batson, 476 U.S. at 82 n. 1, 106 S. Ct. at 1715 n. 1 (emphasis added). As examples, the Court cited People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978); State v. Neil, 457 So. 2d 481 (Fla.1984); and Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S. Ct. 170, 62 L. Ed. 2d 110 (1979). Batson, 476 U.S. at 82 n. 1, 106 S. Ct. at 1715 n. 1.
Significantly, when this Court in Ex parte Jackson, 516 So. 2d 768 (Ala.1986), first discussed the operation of Batson, it relied on the same state cases cited in Batson as cases on which to establish the principle under consideration. The extent of this reliance is illustrated by the following excerpt from Jackson:
516 So. 2d at 772-73 (emphasis added).
Undoubtedly, Jackson contains three of the most significant statements ever made by this Court on the subject of discrimination in jury selection. First, we said: "Although we know that the United States Supreme Court has not yet ruled on whether Batson v. Kentucky is to be applied retroactively, this Court does not need to await revelation from the federal judiciary when our own state constitution also guarantees ... the equal protection of the laws." 516 So. 2d at 772 (emphasis added). Second, we said: "Our state constitution requires that Jackson be entitled to test the prosecution's use of its peremptory strikes under a rule similar to the one set forth in Batson v. Kentucky." 516 So. 2d at 772 (emphasis added). By these two statements, this Court clearly demonstrated that it was not adopting the federal analysis set forth in Batson per se, but, rather, was adopting a quasi-Batson analysis based on Alabama state law. Third, we said: "Once the defendant has made a prima facie case of purposeful discrimination, then the prosecution must come forward with valid non-racial reasons for its strikes. The Florida Supreme Court has given an illustration of the prosecution's burden." 516 So. 2d at 772 (emphasis added). We quoted the portion of State v. Neil, 457 So. 2d 481 (Fla.1984), as establishing the standard of proof needed to rebut a prima facie case of discrimination. Then we added: "No merely whimsical or fanciful reason will suffice as an adequate explanation." 516 So. 2d at 772 (emphasis added).
These cogent statements contained in our first discussion of the "Batson" issue established the framework of the analysis that was to be used in the courts of Alabama to this day. That they established the framework on adequate and independent state law grounds is clear from a fair reading of Jackson. If further proof of this fact was needed, it came quickly in Ex parte Branch, 526 So. 2d 609 (Ala.1987).
In Branch, this Court reiterated the basis for resolving jury discrimination issues. The Court discussed at length the statutory "HISTORY OF THE DRAWING, SUMMONING, SELECTION AND EMPANELING OF JURIES IN ALABAMA." At the conclusion of this historical analysis, it stated:
526 So. 2d at 618-19 (emphasis added).[2]
The Court then proceeded to flesh out the framework established in Jackson. In doing *177 so, it drew extensively from rules set forth in state cases, such as People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (1978); People v. Hall, 35 Cal. 3d 161, 672 P.2d 854, 197 Cal. Rptr. 71 (1983), People v. Turner, 42 Cal. 3d 711, 726 P.2d 102, 230 Cal. Rptr. 656 (1986), and Slappy v. State, 503 So. 2d 350 (Fla.Dist.Ct.App.1987), aff'd, 522 So. 2d 18 (Fla.1988), cert. denied, 487 U.S. 1219, 108 S. Ct. 2873, 101 L. Ed. 2d 909 (1988), of those cases, Wheeler and Hall had preceded Batson. 526 So. 2d at 622-24. We then emphasized: "The trial court, in exercising the duties imposed upon it, must give effect to the state policy expressed in Sections 1, 6, and 22 of the Alabama Constitution and Code 1975, § 12-16-55 and § 12-16-56." 526 So. 2d at 624 (emphasis in original).
Four years later, in Ex parte Bird, 594 So. 2d 676 (Ala.1991), we reversed the convictions of Terry Bird and Jacob Warner on the ground that the prosecution had exercised its peremptory strikes in a racially discriminatory manner. Id. at 678. More specifically, our review of the reasons offered by the prosecution convinced us that "the State's explanations for its peremptory strikes [fell] considerably short of the standard ... announced in Jackson and Branch." 594 So. 2d at 682 (emphasis added). The absence of a reference in this statement to Batson or any other federal authority was conspicuous and intentional, for the Court sought to reinforce the ideaif it needed any reinforcement that peremptory strikes in Alabama were to be subject to review based on adequate and independent state law.
Bird should have dispelled any lingering confusion as to the source of authority for reviewing allegations of jury discrimination. By now, therefore, it should be clear to all that in making a "Batson" motion before the jury is empaneled and sworn, Alabama litigants are simply using "shorthand" terminology to invoke the analysis this Court bases on the Constitution and laws of Alabama. In other words, litigants should understand that in dealing with discrimination in jury selection, Alabama has followed the lead of her sister states in guaranteeing equal protection on the basis of adequate and independent state law.
The willingnessas well as the power and the dutyof the states to afford their citizens equal protection and due process on state-law grounds has been advocated by cases and commentators, including former United States Supreme Court Associate Justice William Brennan, Jr. Lecturing at the New York University School of Law on November 18, 1986, Justice Brennan identified what he perceived as the Supreme Court's "involv[ment] in a new curtailment of the Fourteenth Amendment's scope" of protection of individual "civil and political rights." W. Brennan, Jr., "The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights," 61 N.Y.U. L.Rev. 535, 546 (1986). After noting several specific examples of this phenomenon, he stated:
Id. at 548 (emphasis added). See also Brooks v. Hobbie, 631 So. 2d 883, 889 (Ala. 1993) ("the state court system may be a more appropriate forum for protecting [constitutional] rights [than the federal court system], because, in many instances, the individual rights provisions under the state constitution are ... broader than[ ] those in the federal Bill of Rights"); Vogel v. State, 426 So. 2d 882, 885 (Ala.1982) (the United States Constitution provides only the floor for protection of liberty and property interests; state constitutions and statutes provide the ceiling) (Faulkner, J., concurring specially), cert. denied, 462 U.S. 1107, 103 S. Ct. 2456, 77 L. Ed. 2d 1335 (1983); Gilbreath v. Wallace, 292 Ala. 267, 271, 292 So. 2d 651, 654-55 (1974) (Alabama may, when adjudicating *178 claims based on state law, "provide greater safeguards" than would be available under the United States Constitution). In developing a state-law framework for eliminating discrimination in jury selection, Alabama has laudably risen to the challenge to serve as a "coequal guardian[ ] of civil rights and liberties." W. Brennan, supra, at 548.
Evidently, however, considerable confusion remains as to the source of Alabama's peremptory challenge framework, which confusion is evidenced by the reasoning contained in Justice Maddox's special concurrence and in the Court of Civil Appeals' opinion in this case. The mischief that this confusion, if not dispelled, will inject into this area of the law will be incalculable.
For example, in properly applying state law, the bench and bar operate within a relatively small universe of case-law authority. Justice Maddox's universe, however, would include the entire federal court system. Because only the decisions of the United States Supreme Court are binding on our courts, litigants would be forced to scour every federal circuit for cases supporting their positions, thus inundating the bench and bar with often conflicting case law.
Just as the admiralty courts have created a system comprised of general and often relatively ill-defined principles, Batson litigation has created a sea of federal common law one that is continually evolving. Justice Maddox's approach would cast litigants adrift upon this sea of federal common law. Alabama would be ill served, indeed, by such an approach. For this reason, I have taken this opportunity to say clearly that Alabama's peremptory challenge procedure is based not on federal law, but squarely on adequate and independent state law.
681 So. 2d at 185. Actually, because Alabama's procedure is not tied to the rule adopted and applied in the federal courts, questions regarding the burden of proof of discrimination under Branch and its Alabama progeny are, for me, unconnected with questions regarding the burden of proof under Batson and its federal progeny. Nevertheless, for the sake of clarity I will compare and contrast the Alabama rule with the federal rule.
The three-step procedural framework for eliminating discrimination in Alabama jury selection was succinctly described in Huntley v. State, 627 So. 2d 1013 (Ala.1992), as follows:
Huntley, 627 So. 2d at 1014-15.
The second step of this procedure places the burden of persuasion of non discrimination upon the proponent of the strike to "articulat[e] a clear, specific, and legitimate *179 reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory." Ex parte Branch, 526 So. 2d at 623 (emphasis in original). In Alabama, the proponent of a peremptory challenge must, in order to reshift the burden of persuasion of discrimination to the opponent, articulate at the second step a reason that is not only "legitimate," that is, one that is not inherently discriminatory, but "clear" and "specific." In other words, if, at the second step, the proponent fails to articulate a "clear, specific," nondiscriminatory reason for every strike, the inquiry ends and discrimination has been established; the trial court may notas a matter of lawempanel the jury as selected.
In Ex parte Bird, 594 So. 2d 676 (Ala.1991), for example, the prosecution attempted to justify the use of "17 of [its] 20 peremptory strikes to eliminate 17 of the 19 black veniremembers," id. at 678, on grounds that, as to two of the challenged veniremembers, this Court rejected as constitutionally deficient. Specifically, the Court held invalid the prosecution's assertions that one veniremember lived in a high crime area, id. at 682-83, and that a second veniremember was "underemployed." Id. at 684-85. As to the first purported explanation, the Court stated: "[T]he bald assertion by the [proponent] that a veniremember lives in a high-crime area will not rebut a prima facie showing of discrimination." Id. at 685. As to the second, the Court stated: "[T]here is no showing, nor does it logically follow, how [the] use or nonuse of a degree relates to the facts or issues in this particular case." Id. at 684-85 (emphasis added).
Similarly, under Alabama's procedure, the proponent's explanationseven if facially neutralare not viewed by the judiciary with credulous naivete. In Alabama, "[t]he trial court cannot merely accept the specific reasons given by the prosecutor at face value.... Rather, the court must consider whether the facially neutral explanations are contrived to avoid admitting acts of group discrimination." Ex parte Thomas, 601 So. 2d 56, 58 (Ala.1992).
In Thomas, the State challenged three black veniremembers on the sole basis of "information contained in [a] document to which only the State had access" during the defendant's Batson hearing, id. at 58, namely a document ostensibly showing that the challenged veniremembers "had a large number of misdemeanor convictions and/or bad driving records." Id. at 57. The State refused the defendant's request to submit the document for examination by the trial court or for entry on the record, and the trial court did not require the State to produce it. Id. at 58. This Court held that the refusal to order its production "erroneously denied Thomas an opportunity to prove that the seemingly facially neutral explanations offered by the State were a sham or pretext." Id.
Another example of specific, record-based scrutiny of the proponent's explanation is Millette v. O'Neal Steel, Inc., 613 So. 2d 1225 (Ala.1992), in which O'Neal Steel, Inc. ("O'Neal"), attempted to justify two peremptory challenges on the ground that the veniremembers "did not appear" to be highly educated and a third challenge on the ground that during voir dire the veniremember had used two verbless sentences. Id. at 1229-30. O'Neal contended "that it was important to [its] case that the jurors be able to understand documents and their modifications." Id. at 1230.
Nevertheless, this Court concluded that the proffered explanations were not "adequate, facially race-neutral reasons." Id. A significant consideration in the Court's conclusion was the absence of evidence that O'Neal had evaluated the first two veniremembers' educational levels on anything but their current employment status. Similarly, the record demonstrated that the third veniremember was a "school teacher employed by the Jefferson County Board of Education." As to the third challenge, the Court essentially concluded that the proffered explanation was not supported by the record. See also K.S. v. Carr, 618 So. 2d 707, 711 (Ala.1993) (standard was not satisfied where the "explanation given for striking one of the black veniremembers [was] factually inaccurate, based on that veniremember's testimony during voir dire"); Ex parte Yelder, 630 So. 2d 107, 109 (Ala.1992) (standard was not satisfied where "the `articulation' or *180 `communication' difficulties cited by the State as reasons for its challenges of veniremember[s]... [were] not supported by the record").
Even at the genesis of the contemporary era of peremptory challenge oversight, the extent of similarity between the standard declared in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and the standard adopted in Alabama was questionable. The focal point was the quantity and quality of explanation required of the proponent to rebut a prima facie case of discrimination. Specifically, Branch declared that an effective rebuttal required the proponent to "articulat[e] a clear, specific [emphasis added], and legitimate reason for the challenge which relates to the particular case to be tried [emphasis omitted]." 526 So. 2d at 623.
Although Branch cited Batson for this proposition, the actual language in Batson is different. Batson merely stated: "The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried." 476 U.S. at 98, 106 S. Ct. at 1724 (emphasis added).[4] In a footnote at the end of this sentence, Batson stated: "As we explained in another context, ... the prosecutor must give a `clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges. Texas Dep't of Community Affairs v. Burdine, 450 U.S. [248, 258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207 (1981)]." 476 U.S. at 98, n. 20, 106 S. Ct. at 1724, n. 20. However, the standard articulated in the text accompanying footnote 20, and, especially, the standard in the footnote itself, were eroded in subsequent cases.
In Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991), for example, the Supreme Court revisited Batson in the context of New York's challenges of Hispanic veniremembers in a criminal trial. Responding to the defendant's Batson objection, the prosecutor contended that he had struck the Spanish-speaking veniremembers because he "[felt] very uncertain that they would be able to listen and follow the [court's official] interpreter." 500 U.S. at 356, 111 S. Ct. at 1864. Although this explanation may have satisfied even the Alabama standard, the Court's analysis heralded a retreat from the standard declared in Batson. It stated:
"In evaluating the race neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law....
500 U.S. at 359-60, 111 S. Ct. at 1866 (emphasis added).[5]
Justice Stevens, in a dissent joined by Justice Marshall, criticized the majority on precisely the points of distinction between Batson and Branch. Specifically, he criticized the Court's conclusion "that a defendant's Batson challenge fails whenever the prosecutor advances a ... justification that is not facially discriminatory." 500 U.S. at 376, 111 S. Ct. at 1875 (Stevens, J., dissenting). He explained that "focusing the entire inquiry on the subjective state of mind of the prosecutor," id. at 378, 111 S. Ct. at 1876, "impose[s] on the defendant the added requirement that he generate evidence of the prosecutor's actual subjective intent to discriminate." Id.
The difference between the Alabama and federal standards was even more clearly evidenced in Purkett v. Elem, ___ U.S. ___, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995). In *181 the trial of a defendant charged with second-degree robbery, a Missouri prosecutor struck a black veniremember "because of his long hair." ___ U.S. at ___, 115 S. Ct. at 1770. The prosecution stated: "He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to not be a good juror for that fact, the length, curly, unkempt hair." Id.
The defendant was convicted after the trial court overruled his Batson objection and empaneled the jury. Id. "The Missouri Court of Appeals affirmed, finding that the `state's explanation constituted a legitimate "hunch"' and that `[t]he circumstances fail[ed] to raise the necessary inference of racial discrimination.'" ___ U.S. at ___, 115 S. Ct. at 1770. The defendant unsuccessfully sought habeas corpus relief in the United States District Court. However, the Court of Appeals for the Eighth Circuit reversed, holding that the explanation "`was pretextual,' and that the state trial court had `clearly erred' in finding" no "intentional discrimination." Id.
The United States Supreme Court reversed that judgment. According to the per curiam opinion, the second step of the federal peremptory challenge framework, namely, the proponent's burden of rebutting a prima facie case of discrimination, "does not demand an explanation that is persuasive, or even plausible." ___ U.S. at ___, 115 S. Ct. at 1771 (emphasis in original). The Court cited with peculiar disapproval Batson's footnote 20 containing the terms "clear" and "specific," stating: "The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike `must give a "clear and reasonably specific" explanation of his "legitimate reasons"' for exercising the challenges....'" ___ U.S. at ___, 115 S. Ct. at 1771 (emphasis added). The Court concluded that "[t]he prosecutor's proffered explanation in [that] casethat he struck [the veniremember] because he had long, unkempt hair, a mustache, and a beard[was] race-neutral and satisfie[d] the prosecution's step 2 burden of articulating a nondiscriminatory reason for the strike." Id.
Criticizing the per curiam opinion in a dissent joined by Justice Breyer, Justice Stevens stated: "Today, ... the Court replaces the Batson standard with the surprising announcement that any neutral explanation, no matter how `implausible or fantastic,' ... even if it is `silly or superstitious,' ... is sufficient to rebut a prima facie case of discrimination." ___ U.S. at ___, 115 S. Ct. at 1774 (Stevens, J., dissenting). The dissent also addressed the opinion's pointed disparagement of the requirement cited with approval in the Batson footnote, stating:
___ U.S. at ___ n.8, 115 S. Ct. at 1773-74 n.8 (Stevens, J., dissenting).
I agree with Justice Stevens's dissent as to the effect of the Purkett's express disapproval of the "clear" and "specific" language of Batson's footnote 20 and the requirement in its accompanying text that the explanation relate to the case at hand. The effect is to increase substantially the opponent's burden of proving discrimination by requiring proof of the proponent's "actual subjective intent to discriminate." Hernandez, 500 U.S. at 378, 111 S. Ct. at 1876 (Stevens, J., dissenting). Certainly, it "replace[d] the Batson standard." Purkett, ___ U.S. at ___, 115 S. Ct. at 1771 (Stevens, J., dissenting). Thus, the question whether the standard set forth in Branch differed in any material respect from the standard set forth in Batson is moot. Hernandez and Purkett abrogated whatever *182 positive correlation may have existed between the federal standard as first declared and the standard adopted in Branch.
More significantly, because Alabama still places upon the proponent of the strike "the burden of articulating a clear, specific, and legitimate reason for the challenge that relates to the particular case to be tried," Millette v. O'Neal Steel, Inc., 613 So. 2d 1225, 1229 (Ala.1992) (emphasis added), the Alabama peremptory challenge framework now differs substantively and substantially from the federal rule. This burden, which forms the essence of Alabama's peremptory challenge framework, exceeds the federal standard.[6] The Alabama standard, which does not center on the proponent's subjective intent, discounts "whimsical, ad hoc excuses." Ex parte Yelder, 630 So. 2d 107, 109 (Ala. 1992); contra, Purkett, ___ U.S. at ___, 115 S. Ct. at 1771. Instead, it supplies the judiciary with testable, objective criteria, Ex parte Bankhead, 625 So. 2d 1146, 1148 (Ala. 1993), with which to assess the constitutionality of the strike. Moreover, unlike the federal standard, the Alabama standard does not allow courts to "assum[e] the proffered reasons for the peremptory challenges are true." Hernandez, 500 U.S. at 359, 111 S. Ct. at 1866.
In summary, therefore, I disagree with Justice Maddox on both positions he takes in his special concurrence. First, Alabama's peremptory challenge framework is not based on Batson and its federal progeny, but on adequate and independent state law.[7] Second, Alabama's standard differs considerably from the one set forth in Purkett.
I do, however, agree with Justice Maddox's point that many of the problems that arise with regard to the striking of jurors can be minimized by using questionnaires and by restricting the number of peremptory strikes. The number of strikes could be restricted by limiting the size of the venire from which the jury is selected.
MADDOX, Justice (concurring in the result).
I concur only in the result of the majority's decision to quash the writ. However in view of the fact that the majority states that "[i]n quashing the writ, however, we point out that this Court disapproves of the reliance of the Court of Civil Appeals on Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991), and Purkett v. Elem, ___ U.S. ___, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995)," and that "[t]hose federal cases do not control Alabama's peremptory challenge procedure, which is based on adequate and independent state law," I must file this special concurrence.
The majority's statement shows that there is still disagreement about the law as it relates to peremptory challenges in Alabama, and it suggests that Alabama has an established independent state law ground that governs the use of peremptory challenges in Alabama. I believe this statement will only add to the confusion that already exists in this area of the law.
The law of Alabama relating to peremptory strikes before Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), was stated in Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). Under Swain, a party could exercise a peremptory challenge for a good reason, a bad reason, or for no reason at all, and, thus, could strike jurors because of their race, color, religion, sex, national origin, economic status, or eye color. The decisions of this Court in Ex parte Jackson, 516 So. 2d 768 (Ala.1986), and Ex parte Branch, 526 So. 2d 609 (Ala.1987), both cite Batson as the authority for changing the Swain rule.
As the author of Branch, I believe I know what that opinion holds, and in many cases decided after Branch I have had to defend against allegations that Batson and its progeny, for all intents and purposes, destroyed peremptory challenges. I write specially, and at length, to state why the rule governing peremptory challenges in Alabama, as *183 expressed by both statute and case law, is the same as the rule stated in Batson and its progeny, which is the basis for the federal rule. I also take this opportunity to state and suggest once again how judges and lawyers could eliminate many of the problems that have arisen in applying the principles of law relating to the exercise of peremptory challenges.
I first address the proposition that "Alabama's peremptory challenge procedure ... is based on adequate and independent state law," and the majority's suggestion that Branch, its progeny, and Alabama's statute impose a stricter standard for reviewing the exercise of peremptory challenges than does Hernandez and Purkett. The United States Supreme Court recently, in Pennsylvania v. Labron, ___ U.S. ___, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996), addressed a similar issue relating to the question whether there was an independent state ground for deciding a question. In reversing two decisions of the Supreme Court of Pennsylvania, the Court said: "[T]he Supreme Court of Pennsylvania held that the Fourth Amendment, as applied to the States through the Fourteenth, requires police to obtain a warrant before searching an automobile unless exigent circumstances are present." ___ U.S. at ___, 116 S. Ct. at 2486. The defendant argued that the requirement of a warrant for the search was based on an "adequate and independent state ground, viz., `this Commonwealth's jurisprudence of the automobile exception.'" ___ U.S. at ___, 116 S. Ct. at 2487. The United States Supreme Court disagreed. It wrote:
___ U.S. at ___, 116 S. Ct. at 2487.
A similar situation is presented here, although this case does not deal with search and seizure law. Insofar as I am aware, this Court has never attempted to create an independent and adequate state law ground for Batson-type challenges, but has merely attempted to apply the law as set forth by the United States Supreme Court. I am even more persuaded of the fact that the Alabama law of peremptory challenges does not rest upon an independent state law ground, but is consistent with the federal law as set out in Batson and its progeny. I reach this conclusion after reviewing the majority opinion in Ex parte Jackson, 516 So. 2d 768 (Ala.1986), the first Alabama Supreme Court decision dealing with equal protection and peremptory strikes, and in which the majority cited and attempted to follow Batson.
In quashing the writ, the Court does not expressly accept the plaintiff's argument that this Court, in Ex parte Bird, 594 So. 2d 676 (Ala.1991), and in Millette v. O'Neal Steel, Inc., 613 So. 2d 1225 (Ala.1992), adopted a heightened standard regarding peremptory *184 strikes in Alabama,[8] but I think its statement made in quashing the writ will perpetuate the confusion surrounding this issue.
It seems clear to me from a reading of both Ex parte Jackson, a criminal case, and Millette, a civil case, that this Court was not attempting to establish an Alabama rule relating to peremptory challenges different from the federal rule established in Batson, but was deciding the issues of federal constitutional law that were raised in those two cases. Although I recognize that some state courts had adopted a procedure relating to peremptory challenges before Batson was decided, and that the Batson decision was based, in part, on some of those cases, Alabama was following the rule enunciated in Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), when Batson was decided.
In Ex parte Jackson, this Court made reference to the fact that several state courts "[i]n the face of the harsh burden of Swain, had found that their state constitutions required a lesser burden on a defendant." As I read Jackson, the Court was deciding only an issue of federal constitutional law, and did not decide that there were independent state grounds for finding the existing procedure unconstitutional. This is apparent from the Court's opinion. The Court said:
516 So. 2d at 770. There is no doubt that this Court was deciding the federal constitutional issue presented in Jackson and was not holding that there were independent state grounds for establishing a new procedure.
Likewise, in Millette, this Court specifically stated that it was addressing a federal constitutional question:
613 So. 2d at 1229.
Based on the foregoing, it seems clear that Ex parte Jackson and Branch applied Batson to Alabama cases and did not require anything different from what Batson required. The United States Supreme Court cases decided after Batson merely refined what Batson had said initially. It seems that this Court, in Bird and Millette, was merely attempting to follow the Batson standard set forth by the United States Supreme Court and was not attempting to develop a rule based on independent state law grounds. The language found in both Bird and Millette stating that the proponent of a strike must give a "`clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges," and that the reason must be "related to the particular case to be tried," was derived from Branch, which in turn was based on Batson. In view of this fact, how could it be said that this Court intended Alabama's rule to be different from the rule in Batson? And how could it be different from that set out in Purkett, supra, which did not change the Batson standard, but merely clarified it.[9]
My belief that the United States Supreme Court, in Purkett, did not change the Batson requirements is based on the Court's statements in Purkett and also in Hernandez, supra. In Purkett, the Court suggested that the lower court had "seized upon an admonition" in Batson and had misconstrued it. The Court, in Purkett, said:
___ U.S. at ___, 115 S. Ct. at 1771. A reading of Purkett shows that some judges and lawyers in Purkett were doing what the plaintiffs seek to get this Court to do in this case, seize upon an admonition or "warning" in Batson, and, in turn, blow it out of proportion.
As the author of Branch, and having had the opportunity to review many appeals in which Batson and Branch challenges were *186 made, I have always thought that many in the legal community were misreading the requirements of those two cases, and I welcomed the decision in Purkett, believing that it further clarified what I had thought the Court had initially said in Batson. In my opinion, many were misreading Batson by not extending the principles to peremptory strikes by defendants and to gender-based strikes, and I expressed my beliefs in opinions, some of them dissenting opinions.
Based on a great deal of research, it is my opinion that the underlying purpose of Batson was to prevent persons from being struck "solely" (the word used by the Supreme Court in Batson), because of their race or gender, by either side. I take this opportunity, using excerpts from some articles and papers I have written on Batson,[10] to state why I have never thought Purkett changed the law. I further suggest corrective action that judges and lawyers could take to help eliminate, or at least substantially reduce, the number of Batson issues.[11]
Undeniably, when the Supreme Court of the United States decided Batson, and when this Court decided Branch, the continued viability of the peremptory challenge was questioned. Further, it cannot be denied that attempts at applying the principles of Batson have caused, and continue to cause, judges, prosecutors, defense lawyers, and parties in civil cases, a multiplicity of problems, and that as a result, Batson issues are frequently raised on appeals in both criminal and civil cases.
Why has Batson caused judges and lawyers so much difficulty and why do members of the Supreme Court of the United States still disagree on what Batson said? It is probably because Batson turned the traditional *187 method of striking jurors based on stereotypes completely on its ear. An article by Kent Scheidegger, entitled "Excuses, Excuses," ABA Journal, p. 20 (Feb.1996), shows why the Batson rule has never been accepted. Scheidegger stated:
In my opinion, the main problem arising from the application of Batson is the fact that many lawyers and judges still long to do as they used to do, i.e., use their preemptory challenges to strike jurors based on stereotypes or "gut feelings" based on impermissible stereotypes.[12] The only way a defendant could establish a prima facie case of discrimination under Swain, supra, was to prove systematic discrimination on the part of the prosecutor.
Batson made at least three significant changes in the law as it related to the striking of jurors. First, it clearly overruled the principle set out in Swain that required a defendant to prove systematic discrimination in order to establish a prima facie case of a violation of his or her rights under the Equal Protection Clause of the United States Constitution. Second, the opinion set forth a principle that provided potential jurors with individual rights not to be discriminated against on account of their race. Third, it concentrated on the integrity of the jury system itself by not allowing a party to remove a juror "solely" because that juror was black or white, male or female, etc.
The Batson holding, in my opinion, is summed up by this statement from Batson:
476 U.S. at 89, 106 S.Ct., at 1719 (emphasis added) (footnote omitted). Although Batson completely changed the law relating to this kind of "gut feeling" peremptory strike, Purkett does not walk away from this basic premise, which lies at the heart of Batson.[13]
*188 The frustration with Batson probably resulted from what, as I mentioned earlier, appeared to be one of the basic foundation stones of the Batson decision: the right of citizens to serve on a jury and not be excluded solely for a reason unrelated to the case to be tried, so that the public's confidence in the integrity of the jury system would be preserved, a goal established by the Court in Batson.
Batson accomplished both goals. It prohibited stereotyping of prospective jurors because of race or gender, and it went a long way in restoring public confidence in the jury system. Also, Batson was consistent with the public policy of this State and of those jurisdictions that have adopted the Uniform Jury Selection and Service Act, § 12-16-55 et seq., which gives all citizens an opportunity to serve as jurors and not to be excluded solely because of their race, color, creed, gender, or religion. This concept was first advanced in Batson, and was further written to in Georgia v. McCollum, 505 U.S. at 48-49, 112 S. Ct. at 2353-54. In McCollum, the Court concluded that the State had standing to challenge discriminatory strikes by the defense on behalf of the wronged jurors. 505 U.S. at 55-56, 112 S. Ct. at 2356-57. The McCollum Court further emphasized that Batson prohibits the striking of jurors based on "the race of the juror or the racial stereotypes held by the party." 505 U.S. at 59, 112 S. Ct. at 2359. (Emphasis added.)
McCollum seems to make clear what the Court had said initially in Batsonthat the use of peremptory strikes based on some perceived stereotype based on race or gender will not be permitted. In other words, Batson protects the right of a prospective juror not be excluded from jury service by "purposeful... discrimination," and that is all that Purkett says or suggests.[14]Purposeful discrimination means that a juror is struck because that juror has some characteristic, such as race or gender, that is unrelated to the particularities of the case to be tried. "Purposeful discrimination" would destroy the integrity of the judicial system, because it would suggest that a juror, "solely" because of race or gender, for example, would not be qualified to sit on a jury.
The holding in Batson does parallel the public policy of Alabama as expressed in §§ 12-16-55 and 12-16-56, Ala.Code 1975. Section 12-16-55 provides:
Section 12-16-56 provides:
Branch sets out much of the history of drawing, summoning, selecting, and empaneling juries in Alabama, and, in a footnote, specifically set out the history of peremptory challenges in criminal cases. 526 So. 2d at 617. Because this Court mentioned in *189 Branch the public policy of the state, as quoted above, and because it set forth specific guidelines for applying Batson, some may have thought that Alabama set a higher standard than is now set in Purkett, but any suggestion of a higher Alabama standard is based on a bad premise, because, as I stated earlier, Purkett merely further explains Batson it does not change the holding.
A close reading of §§ 12-16-55 and 12-16-56 shows that the State's policy regarding the opportunity of jurors to serve without regard to "race, color, religion, sex, national origin, or economic status" is not unlike the requirements in Batson. In fact, they are complementary to Batson, and merely complementary. They do not create a higher standard. Before the adoption of this public policy relating to jury service by the Legislature in 1978, the jury selection procedures in several Alabama counties had been challenged in legal proceedings, and practitioners can verify that the jury rolls in many counties would not have reflected the policy set forth by the Legislature.[15] During the late 1970's and early 1980's, the Administrative Office of Courts took specific steps to improve juror management in Alabama and developed specific procedures so that each Alabama county would have its jury lists computer-drawn from a master list compiled primarily from driver's license lists for the county.
Branch provides the basic roadmap for making and preserving a Batson challenge. Branch established the principle that the initial burden is on the party challenging the use of a peremptory challenge to make a prima facie showing that the challenge was used to discriminate against a particular juror solely because of race. Until this prima facie showing is made, there is no requirement on the other party to respond.[16] In Branch, the Court listed examples of conduct that could raise an inference of discrimination and said that the trial court, in determining whether a prima facie showing had been made, should consider all of the circumstances. If a prima facie showing of discrimination is made, then the other party has the burden of articulating a clear, specific, and legitimate reason for the challenge; that challenge must relate to the particular case to be tried and must be nondiscriminatory.
This showing need not, of course, rise to the level of a challenge for cause. In Branch, the Court provided examples of reasons that could be considered legitimate and nondiscriminatory, and it specifically stated, "The trial court, in exercising the duties imposed upon it, must give effect to the state policy expressed in Sections 1, 6, and 22 of the Alabama Constitution and Code 1975, § 12-16-55 and § 12-16-56." 526 So. 2d at 624. (Emphasis in original.) The Court further said:
Id.
Judges and lawyers can eliminate some of the problems created by Batson as now defined further by Purkett. One of the many problems with juror strikes based on racial or gender stereotypes is that a particular juror will not fit the stereotypical mold, so that if the strike is challenged, it would be difficult for the proponent to articulate a clear, specific, and legitimate reason for the exercise of the strike. I have presented the Batson principles to lawyers and judges at several continuing legal education seminars, and at those seminars I have used the following illustration. Juror A is a 28-year-old female; she is single and a graduate of Auburn University at Montgomery; she likes to watch the television legal drama Matlock; and she works for the State as a data processor. Is she black, white, Hispanic, or Asian? Does it matter in regard to the particular case to be tried? Juror B is a 38-year-old teacher of high school biology, who *190 has teenaged children, and who is married and has never been divorced. Is the juror male or female, black or white? Does it matter in the case to be tried? The key is to select jurors based on the particulars of the case to be tried.
Clearly, lawyers can still have general profiles of the type of juror that they would prefer for particular cases. The jurors just cannot be "purposefully discriminated" against based "solely" on account of their race or gender. The burden, of course, remains on the opponent of the strike to make a prima facie showing that the other side has violated this principle.
Although I believe Batson problems will subside in the trial courts, I want to state once again what I stated in Huntley v. State, 627 So. 2d 1013, 1017-18 (Ala.1992), in a special concurrence, with the hope that it might help prevent Batson-generated problems:
627 So. 2d at 1017-18 (footnote omitted). I further suggested the use of a questionnaire similar to the one used in Montgomery County:
627 So. 2d at 1018. The use of a questionnaire, commonly referred to as "paper voir dire," could effectively ferret out individual potential jurors who might not be desirable for the particular case to be tried. Properly designed questionnaires might disclose hidden prejudices that the juror might not even suspect he or she has. For example, some questionnaires can reportedly determine whether a particular juror might be prosecutionor defenseoriented.
The Alabama Administrative Office of Courts and the Alabama Law Institute are working on the possibility of this Court's adopting a general questionnaire that could be used in every county, but that has not been done yet. I attach a copy of a questionnaire that I have drafted which is based on several questionnaires that have been used in *191 some Alabama circuit courts and in other state and federal courts. Appendix A. Individual questionnaires, of course, in addition to a generic questionnaire, could be prepared for individual cases, so that the parties could obtain information about the jurors relating to the particular case to be tried.
It should be remembered that in Batson the Supreme Court vested with trial courts much discretion in determining whether one party has made a prima facie showing that the opposing party had engaged in "purposeful discrimination," and also whether, in those cases where neutral reasons for a strike were required, whether the reasons given were a mere pretext for purposeful discrimination.
In conclusion, let me say that Batson and its progeny do prohibit most "stereotyping" and "gut feelings" in the exercise of peremptory strikes involving protected classes. Batson's admonition to trial attorneys was: Do not be involved in "purposeful discrimination," use voir dire to individualize the jurors as much as possible, and move from the traditional thought patterns that identified individual jurors as possessing the purported stereotypical characteristics of a class of which he or she is a member.
In short, relegate this type of "gut feel" striking of jurors to the pages of history. Let it take its place alongside the quill pen, pleading in Latin, and legal-size paper. Apply instead the policy of the Uniform Jury Selection and Service Act, which is the model act after which both the Federal law and the Alabama law regulating the selection of juries are based. The underlying policy of the Uniform Jury Selection and Service Act is "that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity ... to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose," and that "[a] citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin or economic status." Sections 12-16-55 and -56, Ala.Code 1975.
HOOPER, C.J., concurs.
*194 HOUSTON, Justice (concurring in the result).
I think this Court should affirm the judgment of the Court of Civil Appeals; nevertheless, I am content to quash the writ of certiorari, given that quashing the writ leaves the judgment of the Court of Civil Appeals in place. However, I disagree with what this Court has written in quashing the writ.
The United States Supreme Court in Purkett v. Elem, ___ U.S. ___, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995), encouraged me to think that the peremptory challenge might survive. However, the majority of this Court today drives another nail into the coffin of the peremptory challenge in Alabama.
[1] Under Swain, one opposing a peremptory strike on the basis of discrimination ordinarily could not prove the discrimination on the basis of the facts in the opponent's particular case. Batson, 476 U.S. at 92, 106 S. Ct. at 1720-21.
[2] This discussion, which comprised no less than two pages of text, served to underscore the statelaw underpinnings of the procedure Branch was developing.
[3] "The burden of persuasion is initially on the party alleging discriminatory use of peremptory challenges to establish a prima facie case of discrimination." Branch, 526 So. 2d at 622.
[4] Conspicuously absent from the standard declared in the text of the Batson opinion were the words "clear" and "specific."
[5] The Court affirmed the judgment of the New York Court of Appeals, which had "[held] that the prosecutor had offered a legitimate basis for challenging the individuals in question and [had deferred] to the factual findings of the lower New York courts." 500 U.S. at 358, 111 S. Ct. at 1865.
[6] The strike upheld in Purkett would not have survived the Alabama test, because, among other things, the length of the veniremember's hair had nothing to do with the case under consideration.
[7] Consequently, Purkett did not, as the Court of Civil Appeals concluded, disturb the standard applied in Millette v. O'Neal Steel, Inc., 613 So. 2d 1225 (Ala.1992).
[8] The plaintiffs point to language in those opinions requiring that the party exercising the challenged peremptory strike to "articulat[e] a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried," but, as I shall show later, those terms are lifted right out of Batson.
[9] I recognize, of course, that two Justices of the United States Supreme Court were of the opinion that Purkett did overrule portions of Batson, but they were dissenters. Justice Stevens, with whom Justice Breyer concurred, said: "In my opinion it is unwise for the Court to announce a law-changing decision without first ordering full briefing and argument on the merits of the case. The Court does this today when it overrules a portion of our opinion in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)." Purkett, ___ U.S. at ___, 115 S. Ct. at 1772.
[10] I have been asked on several occasions to give lectures before bench and bar groups on Batson-type issues, and I have also written on the subject. See, Hugh Maddox, Alabama Rules of Criminal Procedure, "The Effect of Batson v. Kentucky and Ex Parte Branch On Jury Selection in Criminal Cases," pp. 172-217 (Michie, 1995 Cum.Supp.); that section of my book contains a listing of many of the cases that address Batson-related issues; see, also, my article Batson: From an Appellate Judge's Viewpoint, 54 Ala. Law. 316 (1993), and my handout materials presented to the Alabama Trial Lawyers Association, January 27-29, 1994, entitled Batson: Quo Vadis?
[11] The following is a list of some selected articles about Batson:
1. Hugh Maddox, Batson: From an Appellate Judge's Viewpoint, 54 Ala. Law. 316 (1993).
2. S.J. Meltzer, United States v. Greer: Is a Racial Inquiry Necessary for an Adequate Voir Dire?, 67 Tul. L.Rev. 1700 (1993).
3. David Hittner and Eric J.R. Nichols, Jury Selection in Federal Civil Litigation: General Procedures, New Rules, and the Arrival of Batson, 23 Tex. Tech L.Rev. 407 (1992).
4. Michael A. Cressler, Powers v. Ohio: The Death Knell for the Peremptory Challenge?, 28 Idaho L.Rev. 349 (1992).
5. Steven M. Puiszis, Edmonson v. Leesville Concrete Co.: Will the Peremptory Challenge Survive its Battle with the Equal Protection Clause?, 25 J. Marshall L.Rev. 37 (1991).
6. Norbert L. Kerr, Geoffrey P. Kramer, John S. Carroll, and James J. Alfini, On the Effectiveness of Voir Dire in Criminal Cases with Prejudicial Pretrial Publicity: An Empirical Study, 40 Am. U.L.Rev. 665 (1991).
7. Reid Hastie, Is Attorney-Conducted Voir Dire an Effective Procedure for the Selection of Impartial Juries?, 40 Am. U.L.Rev. 703 (1991).
8. Bruce J. Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich. L.Rev. 1 (1982).
9. Jury Questionnaire Helps Defense Counsel Weed Out Biased Jurors, 10 Inside Litig. 5 (October 1993).
10. Valerie P. Hans and Krista Sweigart, Jurors' Views of Civil Lawyers: Implications for Courtroom Communication, 68 Ind. L.J. 1297 (1993).
11. B. Michael Dann, "Learning Lessons" and "Speaking Rights": Creating Educated and Democratic Juries, 68 Ind. L.J. 1229 (1993).
12. Nancy J. King, Racial Jurymandering: Cancer or Cure? A Contemporary View of Affirmative Action in Jury Selection, 68 N.Y.U. L.Rev. 707 (1993).
13. Joseph D. Phelps, Batson: Challenges From the Perspective of a Trial JudgeSome Practical Considerations, 54 Ala. Law. 320 (1993).
14. Cathy E. Bennett, Robert B. Hirschhorn, and Heather R. Epstein, How to Conduct a Meaningful and Effective Voir Dire in Criminal Cases, 46 SMU L.Rev. 659 (1992).
15. G. Steven Henry, The Scope of Voir Dire in Civil Cases: An Alabama Perspective, 9 Am. J. Trial Advoc. 279 (1985).
16. James H. Gold, Voir Dire: Questioning Prospective Jurors on Their Willingness to Follow the Law, 60 Ind. L.J. 163 (1985).
17. Bonnie L. Mayfield, Batson and Groups Other Than Blacks: A Strict Scrutiny Analysis, 11 Am. J. Trial Advoc. 377 (1988).
18. Jere W. Morehead, Exploring the Frontiers of Batson v. Kentucky: Should the Safeguards of Equal Protection Extend to Gender?, 14 Am. J. Trial Advoc. 289 (1990).
[12] As an example of stereotyping by attorneys, I once heard of a theory alleging that brown-eyed people were emotional and that blue-eyed people were calculating. Using such stereotypes, lawyers tried to strike certain veniremembers, so as to leave in the jury a juror that they thought would be a "bell cow." A "bell cow" is a slang term for a leader, arising from the practice of cattle farmers placing a bell around the neck of the lead cow of the herd. See Webster's Third New International Dictionary (1981).
[13] Because Batson was a criminal case, involving a black defendant who had challenged the State's use of a peremptory strike to remove a black juror, many lawyers and judges may not have fully appreciated its scope at the time it was written, but there can be little doubt now that the principle set out in Batson is applicable in many other settings. For example, it is applicable to civil cases, like this one. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991); it is applicable to peremptory challenges by defendants in criminal cases, Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992); to the prosecution's strikes of black jurors in a criminal case involving a white defendant, Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); and to gender-based strikes, J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). Prior to the United States Supreme Court's decision in J.E. B., this Court was split on the issue whether Batson applied to gender-based strikes. A majority of this Court was of the opinion that Batson did not apply to gender-based strikes, but there were strong dissents. See Fisher v. State, 587 So. 2d 1027 (Ala. Cr.App.1991), cert. denied, 587 So. 2d 1039 (Ala. 1991) (Maddox, J., dissenting), cert. denied, 503 U.S. 941, 112 S. Ct. 1486, 117 L. Ed. 2d 628 (1992); Dysart v. State, 581 So. 2d 541 (Ala.Cr. App.), cert. denied, 581 So. 2d 545 (Ala.1991) (Maddox, J., dissenting, joined by Adams, J.). For other Alabama cases in which the issue of gender-based strikes was discussed, see Ex parte Bankhead, 625 So. 2d 1146 (Ala.1993); Huntley v. State, 627 So. 2d 1013 (Ala.1992); Williams v. State, 607 So. 2d 321 (Ala.Cr.App.1992) (Montiel, J., dissenting); Ex parte Murphy, 596 So. 2d 45 (Ala.1992) (Maddox, J., dissenting); Mims v. State, 591 So. 2d 120 (Ala.Cr.App.1991); and Stariks v. State, 572 So. 2d 1301 (Ala.Cr.App. 1990).
[14] In Purkett, the Court said:
"Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. Hernandez v. New York, 500 U.S. 352, 358-359, 111 S. Ct. 1859, 1865-1866, 114 L. Ed. 2d 395 (1991) (plurality opinion); id., at 375, 111 S.Ct., at 1874 (O'CONNOR, J., concurring in judgment); Batson, supra, at 96-98, 106 S.Ct., at 1722-1723."
___ U.S. at ___-___, 115 S. Ct. at 1770-71. (Emphasis added.) It would appear that the words "purposeful discrimination" are the equivalent of the words "solely on account of" that appeared in Batson and that were discussed in that opinion.
[15] For a list of the counties where actions had been filed, see Ex parte Branch, 526 So. 2d 609, 618 n. 3 (Ala.1987).
[16] Now, the Batson principle has been extended to include strikes based on gender. See J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). | August 30, 1996 |
c81a64a3-32bf-4414-8ffb-5e9605d5036d | Ex Parte DCH Regional Medical Center | 683 So. 2d 409 | 1951206 | Alabama | Alabama Supreme Court | 683 So. 2d 409 (1996)
Ex parte DCH REGIONAL MEDICAL CENTER
In re Rosalyn McCAIN,
v.
DCH REGIONAL MEDICAL CENTER.
1951206.
Supreme Court of Alabama.
October 11, 1996.
*410 James J. Jenkins of Phelps, Jenkins, Gibson & Fowler, Tuscaloosa, for Petitioner.
Hank Hawkins, Tuscaloosa, for Respondent.
HOUSTON, Justice.
Pursuant to Rule 21, Ala.R.App.P., DCH Regional Medical Center ("the hospital") has petitioned this Court for a writ of mandamus directing the Court of Civil Appeals to vacate its order of April 16, 1996, setting aside the trial court's March 11, 1996, order compelling discovery. The writ is granted.
The plaintiff, Rosalyn McCain, sued the hospital, alleging negligence and wantonness and seeking damages for an infection that she claims to have contracted while receiving care at the hospital. During discovery, the hospital submitted the following interrogatories to the plaintiff:
The plaintiff responded as follows:
Thereafter, the hospital requested that the plaintiff's attorney produce the tape, which the plaintiff says depicts hospital management personnel discussing "the failure to clean contaminated instruments in all operating rooms at [the hospital] and [the hospital's] outpatient center and doctors' complaints concerning the same," and that he also disclose the name of the person who had given him the tape. The plaintiff's attorney produced the tape; however, citing the attorney/client privilege and the work product rule, he refused to disclose the identity of the person who had given him the tape. The trial court granted the hospital's motion to compel this information, and the plaintiff's attorney sought and obtained a writ of mandamus from the Court of Civil Appeals directing the trial court to set aside its order.[1]
The hospital contends that the plaintiff's attorney failed to meet his burden of proving that the identity of the person who had provided him with the tape was protected from disclosure and, therefore, that the Court of Civil Appeals had no evidentiary basis upon which to set aside the trial court's order. The plaintiff's attorney, citing Ex parte Enzor, 270 Ala. 254, 117 So. 2d 361 (1960), and a confidential letter that he submitted to the trial court under seal, contends that he presented sufficient proof to the trial court to establish that the information was protected from disclosure and, therefore, that the Court of Civil Appeals properly set aside the trial court's order. Specifically, the plaintiff's attorney argues that he proved that the disclosure of his source's identity would possibly subject that person to criminal prosecution for providing him with the tape. According to the plaintiff's attorney, this brings this case within the exception to the general rule that the identity of a client is not protected from disclosure under the attorney/client privilege.[2] In Ex parte Enzor, this Court, quoting 58 Am.Jur. Witnesses, § 507, discussed that exception:
270 Ala. at 257, 117 So. 2d at 362.
In Ex parte Enzor, a qualified practicing attorney was called before a grand jury in Covington County and asked the following question:
The attorney asserted that this statement had been made to him by a client of his and that his answer would violate the rule of privilege that exists as a result of this attorney/client relationship. After a hearing on a petition to compel disclosure, at which testimony was taken, the trial court asked the attorney to disclose the name of his client. He refused and was held in contempt. After discussing the general rule and the recognized exception noted above, this Court stated:
270 Ala. at 259-60, 117 So. 2d at 365-66.
In Ex parte State ex rel. McKinney, 575 So. 2d 1024, 1026 (Ala.1990), this Court stated:
After carefully examining the materials presented, including the documents submitted under seal, in accordance with our mandamus standard of review, we conclude that the Court of Civil Appeals had no evidentiary basis upon which to set aside the trial court's order compelling disclosure. The burden is on the party asserting the attorney/client privilege to establish the existence of an attorney/client relationship as well as other facts demonstrating the claim of privileged information. See Swain v. Terry, 454 So. 2d 948 (Ala.1984). Whether a communication is privileged is a question of fact to be determined by the trial court from the evidence presented and "[a] witness, be he attorney or client, is not entitled to decide the question for himself." Harris v. State, 281 Ala. 622, 625, 206 So. 2d 868, 871 (1968). Nothing was presented to the Court of Civil Appeals, and nothing has been presented to this Court, indicating that the trial court acted arbitrarily or capriciously in ordering the disclosure of the identity of the person who provided the tape to the plaintiff's attorney. In this respect, we note that the sealed materials do not include an affidavit from the plaintiff's attorney, as the plaintiff's attorney asserts. The plaintiff's attorney did submit a letter to the trial court, which we have carefully examined, in which he asserted, among other things, that he had an attorney/client relationship with the person who had provided him with the tape and that the hospital's attorney had accused the person of committing a criminal act by providing him with the tape. Although the plaintiff's attorney was under an ethical obligation to speak truthfully in his letter to the trial court, see Rule 3.3, Rules of Professional Conduct ("Candor Toward the Tribunal"), the assertions contained in the letter itself do not constitute evidence establishing the privilege. See Harris, supra, 281 Ala. at 625, 206 So. 2d at 871.
We further point out that even if we were to extend evidentiary value to the assertions of the plaintiff's attorney and were to conclude that his relationship with the source of the tape was one of attorney and client for purposes of invoking the privilege, we still could not find clear error on the trial court's part in compelling disclosure. The assertions contained in the letter are clearly insufficient to establish that the person who provided the tape to the plaintiff's attorney would be subject to criminal prosecution. In the absence of a clear indication that the tape itself (as opposed to a copy of the tape) was removed from the hospital or that the taped material was protected under copyright laws, the mere fact that the hospital's attorney may think that a criminal act was committed is not enough to invoke the Enzor exception. The criminality of the act needs to be proved before the privilege can be invoked. There was no question in Enzor that the acceptance of a bribe by an election official was a criminal act.
For the foregoing reasons, we hold that the Court of Civil Appeals abused its discretion by issuing a writ of mandamus setting aside the trial court's discovery order. Under Rule 26, a party is entitled to a broad right of discovery unless the information sought is shown to be irrelevant or privileged, see Ex parte AMI West Alabama General Hospital, 582 So. 2d 484 (Ala.1991), and great deference is extended to trial courts in regard to their rulings on discovery matters. See Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala.1981). At this point in the case, the plaintiff's attorney has made no evidentiary showing (at least as far as we can tell from the materials before us) that the information sought is irrelevant or privileged. We hasten to point out, however, that by issuing the writ in this case we do not mean to foreclose any future hearings on the matter at which evidence establishing the privilege could be introduced and considered by the trial court.
WRIT GRANTED.
HOOPER, C.J., and MADDOX, SHORES, and KENNEDY, JJ., concur.
COOK and BUTTS, JJ., dissent.
[1] The Court of Civil Appeals issued a two-paragraph order, but that order provided no insight as to why it was setting aside the order of the trial court. Ex parte McCain, 683 So. 2d 57 (Ala. Civ.App.1996) (table).
[2] The plaintiff's attorney does not argue that the identity of the person who provided him with the tape is protected under the work product rule. In any event, we fail to see how the person's identity could be considered a document or a tangible thing prepared in anticipation of litigation or for trial, or how it otherwise could be classified as a mental impression, conclusion, opinion, or legal theory of the plaintiff's attorney or of any other representative of the plaintiff. See Rule 26(b)(3), Ala.R.Civ.P. | October 11, 1996 |
18aab8cd-ae3f-419a-a945-0bb31f8227f4 | Ex Parte City of Irondale | 686 So. 2d 1127 | 1950897 | Alabama | Alabama Supreme Court | 686 So. 2d 1127 (1996)
Ex parte CITY OF IRONDALE.
Re Morris E. SCHIFFMAN and Eleanor R. Schiffman
v.
CITY OF IRONDALE, et al.
1950897.
Supreme Court of Alabama.
July 26, 1996.
Rehearing Denied November 22, 1996.
*1128 M. Wayne Wheeler, Birmingham, for Petitioner.
Stan Brobston, Bessemer, for Respondents.
SHORES, Justice.
The City of Irondale ("City") petitions this Court to issue a writ of mandamus directing a judge of the Jefferson County Circuit Court to dismiss an appeal brought by Eleanor R. Schiffman and Morris E. Schiffman. The City argues that the Schiffmans failed to file a timely appeal of the probate court's ruling on the condemnation of the Schiffmans' property; accordingly, the City states, the circuit court has no jurisdiction over the matter and the appeal must be dismissed. This Court concludes that the writ directing the circuit judge to dismiss the case is due to be issued.[1]
The City petitioned for condemnation and included as defendants, along with Mrs. Schiffman, AmSouth Bank, N.A.; Alabama Power Company; O.Z. Hall, tax collector for Jefferson County; and "all of the heirs and devisees of the individual defendants if deceased"; "All unknown claimants of the property hereinafter described who may have any right, title, or interest, in the parcel described herein, whose names, ages and conditions are unknown at this time and will be added by amendment when ascertained." A guardian ad litem was appointed to represent unknown heirs, devisees, and claimants. During the pendency of this proceeding, Mrs. Schiffman conveyed to her husband, Morris Schiffman, an interest in the property that has been the subject of this litigation. The Schiffmans did not inform the probate court of this transfer.
On January 20, 1995, the probate court ordered that the property be condemned and awarded to the City. On February 15, 1995, the City filed a motion to amend the order to condemn Morris Schiffman's interest in the property as well. On February 17, 1995, Mrs. Schiffman filed a notice of appeal to the Circuit Court of Jefferson County; she filed it both in the Jefferson Circuit Court and in the Jefferson Probate Court, as required by § 18-1A-283, Ala.Code 1975. The probate judge on August 21, 1995, entered an amended order of condemnation on, that stated that "while the original condemnation was pending in the Probate Court, Eleanor R. Schiffman did record in the Probate Court a deed in Real Volume 9414, Page 5513 to herself and to her husband, Morris E. Schiffman, Sr." The amended order condemned Morris E. Schiffman's interest, in accordance with the original condemnation order dated January 20, 1995.
Although the Schiffmans' notice of appeal from the order dated August 21, 1995, was dated September 11, 1995, the Schiffmans failed to file this notice in the probate court until September 28, 1995. The City moved that the circuit court dismiss the Schiffmans' appeal on jurisdictional grounds; the circuit court denied this motion. Accordingly, the City has petitioned this Court to issue a writ of mandamus requiring the circuit judge to dismiss the Schiffmans' appeal.
Mandamus is an extraordinary remedy. One petitioning for the writ of mandamus must show "(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Johnson, 638 So. 2d 772, 773 (Ala.1994); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991); Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989). This Court is aware that "a writ of mandamus is a drastic and extraordinary remedy." Ex parte Kendrick, 642 So. 2d 466 (Ala.1994). Indeed, "a writ should not issue *1129 to a trial court without a clear showing of abuse by that court." Id. at 467.
The Schiffmans refer this Court to Alabama Rule of Appellate Procedure 4(a)(5):
The Schiffmans argue that this rule applies to an appeal taken from the probate court to the circuit court in a condemnation case. This argument fails to recognize that Chapter 1A, Title 18, Ala.Code, 1975, controls the procedure for petitioning to condemn property interests and, specifically, that § 18-1A-283, Ala.Code 1975, controls the filing of an appeal from a judgment of the probate court; that section provides:
This section is the only provision for appeals from probate court orders of condemnation; that fact necessarily excludes the application of the general law on the subject of appeals from the probate court to the circuit court. Stanton v. Monroe County, 261 Ala. 61, 72 So. 2d 854 (1954); State ex rel. Wood v. Williams, 125 Ala. 115, 28 So. 401 (1900).
The Schiffmans also argue that the City relied on Rule 59, Ala.R.Civ.P., to move to amend the judgment and that they, therefore, should be able to rely on Rule 4(a)(5), Ala.R.App.P. This argument is unpersuasive. First, the Schiffmans made no objection to the City's reliance on the Alabama Rules of Civil Procedure in the probate court. Second, no appeal had been taken to the circuit court when the motion to amend the condemnation order was filed on February 15, 1995.
The City argues that McCoy v. Garren, 384 So. 2d 1113 (Ala.Civ.App.1980), is controlling. In McCoy, the defendants attempted to appeal to the circuit court from the probate court's preliminary order of condemnation. The probate court entered its final order after the defendants had filed their notice of appeal. The circuit court ultimately dismissed the appeal. The Court of Civil Appeals affirmed the dismissal, holding that the final order, dated November 27, 1978, triggered the running of the 30-day period allowed for an appeal, and, therefore, that the notice of appeal dated November 8, 1978, was premature. Id. at 1114-15.
This case is different, because a final order condemning Eleanor Schiffman's interest in the land had been entered before Mrs. Schiffman filed her notice of appeal. Nonetheless, McCoy supports the City's position:
McCoy, at 1114-15. The Schiffmans should have filed a notice of appeal pursuant to § 18-1A-283 after the final order of August 21, 1995. No provision in the Probate Code makes a notice of appeal from a previous order effective as to a subsequent, corrected final order.
The circuit court has no jurisdiction to entertain this untimely filed appeal. We issue *1130 the writ and direct the circuit judge to dismiss the Schiffmans' appeal.
WRIT ISSUED.
HOOPER, C.J., and MADDOX and KENNEDY, JJ., concur.
COOK, J., concurs specially.
COOK, Justice (concurring specially).
This case presents a quagmire not previously addressed. The Schiffmans filed their notice of appeal on February 17, 1995, after the probate court had ordered on January 20, 1995, that the property be condemned and awarded to the city. An amended order of condemnation was entered by the probate court on August 21, 1995, pursuant to a motion to amend filed by the City on February 15, 1995. Thereafter, the Schiffmans refiled their notice of appeal; it was dated September 11, 1995, but was not filed in the probate court until September 28, 1995, more than 30 days after the final amended order of August 21, 1995. If the post-trial motion to amend the January 20, 1995, order of the probate court had not been filed, there would be no question that the appeal filed by the Schiffmans would have been timely.
The Schiffmans contend in this court that Rule 4(a)(5), Ala.R.App.P. (set out in the majority opinion), provides them relief, by holding in abeyance their February 17, 1995, notice of appeal until the probate court issued its amended final order, at which time the notice of appeal became effective. This rule does provide that sort of relief in an appeal to an appellate court; however, I an not persuaded that this appellate rule applies to the situation presented by this case, a condemnation appeal from the probate court to the circuit court. Rule 1, Ala.R.App.P., provides in pertinent part, "These rules govern appeals to the Supreme Court, the Court of Civil Appeals, and the Court of Criminal Appeals, and proceedings on petitions for writs or other relief which these courts or judges thereof are empowered to grant."
I refer to the set of circumstances as a quagmire, because this case is also unlike McCoy v. Garren, 384 So. 2d 1113 (Ala.Civ. App.1980). In McCoy the final order was entered after the defendants had filed their notice of appeal. No post-trial motion was involved in McCoy. Therefore, I agree with the majority that the appeal in this case is controlled by § 18-1A-283, Ala.Code 1975, which requires that the notice of appeal be filed within 30 days of the order of condemnationunder the facts of this case, that order was the final amended order entered on August 21, 1995.
[1] This Court has considered another case involving the same property and several of the same parties. In Schiffman v. City of Irondale, 669 So. 2d 136 (Ala.1995), Mrs. Schiffman appealed the trial court's summary judgment in favor of the City of Irondale in her action seeking damages for trespass, inverse condemnation, and interference with the use and enjoyment of her property, as well as injunctive and declaratory relief. This Court held that it had no jurisdiction to consider the merits of her appeal because it was not timely filed. | July 26, 1996 |
24aad6d8-02dc-469c-ac92-63763bb3616a | Travis v. Ziter | 681 So. 2d 1348 | 1941356 | Alabama | Alabama Supreme Court | 681 So. 2d 1348 (1996)
Steve TRAVIS and Renee Travis
v.
Nelson ZITER, et al.
1941356.
Supreme Court of Alabama.
July 12, 1996.
*1350 Archie C. Lamb, Jr. of Levin, Middlebrooks, Mabie, Mitchell, Papantonio & Lamb, Birmingham, and Elizabeth J. Hubertz and Pamela L. Sumners, Birmingham, for Appellants.
Charles N. McKnight, Mobile, for Father Nelson B. Ziter.
F. Grey Redditt and Deborah B. Hembree of Adams and Reese, Mobile, for Most Rev. Oscar H. Lipscomb, Archbishop of Mobile, a Corporation Sole; and Most Rev. Oscar H. Lipscomb, Archbishop of Mobile.
D. Scott Wright and Thomas H. Nolan, Jr. of Brown, Hudgens, P.C., Mobile, and Fred M. McCormick and P. Vaughn Russell of McCormick & Russell, Selma, for Father Roger Lacharite and the Society of St. Edmund.
Robert H. Smith of Collins, Galloway & Smith, Mobile, for National Conference of Catholic Bishops, United States Catholic Conference and Archbishop William H. Keeler.
ALMON, Justice.
The plaintiffs appeal from a judgment holding that their action is barred by the statutes of limitations. Steve Travis and his wife Renee Travis brought this action in 1994, alleging assault and battery, negligence, negligent hiring and supervision, wantonness, outrage, civil conspiracy, and breach of fiduciary duty against Father Nelson B. Ziter, Archbishops Oscar H. Lipscomb and William H. Keeler, Rev. Roger J. Lacharite, the Archdiocese of Mobile, the Society of St. Edmund, the National Conference of Catholic Bishops, and the United States Catholic Conference. Specifically, the Travises allege that Steve Travis was subjected to both physical and sexual abuse at the hands of Fr. Ziter between the years 1974 and 1979, while Steve was a minor. The defendants filed motions to dismiss, Rule 12(b)(6), A.R.Civ.P., arguing that the complaint is barred on its face by the applicable statutes of limitations because, they argued, the various causes of action accrued no later than 1979. In opposition to the motion to dismiss, the Travises argue that Steve was unaware of his causes of action until 1993, claiming that he had repressed memory of the events until then, when, they say, a visit to Fr. Ziter "triggered" a memory of the events. The Travises recognize that they brought this action in 1994, well after the applicable statutes of limitations otherwise would have barred the action,[1] but they argue that the memory repression *1351 should be held to toll the running of the limitations period; they claim the benefit of the disability of insanity, which allows a plaintiff to file at any time up until three years after the termination of the "disability" that existed when the cause of action "accrued." § 6-2-8, Ala. Code 1975.
A dismissal based on the statute of limitations is proper only if, from the face of the complaint, it is apparent that the tolling provisions do not apply. Williams v. Capps Trailer Sales, 589 So. 2d 159, 160 (Ala.1991). If the court considers matters outside the pleadings in ruling on the defendant's motion to dismiss, then the motion is converted into a motion for summary judgment, regardless of how the motion was styled. Rule 12(b), Ala.R.Civ.P.; Papastefan v. B & L Constr. Co., 356 So. 2d 158 (Ala.1978). The circuit court held a hearing to consider the defendants' motions to dismiss, and the Travises presented affidavits from Steve Travis and the clinical psychologist who had been treating him. Because there was no indication during the course of the hearing, or in the circuit court's order dismissing the plaintiff's claims, that the court had excluded the affidavits, we must assume that the circuit court considered them when it ruled on the motions. Thus, we must analyze the motions to dismiss under the summary judgment standard. Rule 12(b), Ala.R.Civ.P.
In reviewing a summary judgment, we must determine whether the movant made a prima facie showing that there was no genuine issue of material fact and that the movant was entitled to a judgment as a matter of law. If the movant made that showing, then the burden shifted to the nonmovant to rebut that showing by presenting substantial evidence creating a genuine issue of material fact. In determining whether the trial court was presented substantial evidence creating a genuine issue of material fact, a reviewing court must examine the record in a light most favorable to the nonmoving party and must resolve doubts in favor of the nonmoving party. Rule 56(c), Ala.R.Civ.P.; Martin v. Arnold, 643 So. 2d 564 (Ala.1994); Southern Guar. Ins. Co. v. First Alabama Bank, 540 So. 2d 732 (Ala. 1989); Harbison v. Albertville Nat'l Bank, 495 So. 2d 1084 (Ala.1986). "Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989).
The only evidence before the circuit court was the two affidavits submitted by the Travises. The defendants presented no evidence. Normally, a defendant's failure to present evidence in support of its summary judgment motion (here, a motion to dismiss treated as a summary judgment motion) would prevent the burden from shifting to the nonmovant to come forward with evidence in response to the motion. In such cases, a summary judgment would be inappropriate. See Mixon v. Cason, 622 So. 2d 918, 921 (Ala.1993). However, even assuming the truth of Steve Travis's claim that he suffered from post-traumatic stress disorder and as a result repressed all memory of the alleged abuse until 1993, as alleged in the complaint and the affidavits, we are faced with a question of law: Whether the combination of post-traumatic stress disorder and repressed memory can be considered an "insanity" disability, within the meaning of § 6-2-8, Ala. Code 1975, that will toll the running of the limitations period.
The controversial question of repressed memory of childhood sexual abuse has been the subject of numerous studies and law review articles. See, e.g., Gary M. Ernsdorff & Elizabeth F. Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases of Memory Repression, 84 J.Crim. L. & Criminology 129 (1993); Report of the Council on Scientific Affairs, American Medical Association, Memories *1352 of Childhood Abuse, CSA Report 5-A-94; Mark MacNamara, Fade Away, The Rise and Fall of Repressed-Memory Theory in the Courtroom, Cal. Law., Mar. 1995, at 36; Julie Schwartz Silberg, Note, Memory Repression: Should it Toll the Statutory Limitations Period in Child Sexual Abuse Cases?, 39 Wayne L.Rev. 1589, 1591 (1993). Review of these studies and articles leads to one conclusion: There is no consensus of scientific thought in support of the repressed memory theory.
With these concerns in mind, we begin our analysis with the tolling provision the Travises ask us to apply in their case:
§ 6-2-8, Ala. Code 1975 (emphasis added). Although the strict application of statutes of limitations is tempered somewhat by the narrow exceptions prescribed in the tolling provisions, the public policy behind the time-bar concept is quite clear:
Stephens v. Creel, 429 So. 2d 278 (Ala.1983) (quoting Seybold v. Magnolia Land Co., 376 So. 2d 1083, 1086 (Ala.1979)). Because statutes of limitations are a necessary means of ensuring the reliability of the fact-finding process, a court must exercise great caution when a party seeks to apply the tolling mechanism found in § 6-2-8.
The question before us is a difficult one because very few modern cases examine the meaning of "insanity," as used in § 6-2-8. While our cases recognize "the need to protect individuals suffering under certain disabilities," Emerson v. Southern Ry. Co., 404 So. 2d 576, 578 (Ala.1981), neither our statutes nor our case law clearly defines the term "insane." Section 1-1-1, Ala. Code 1975, defines the terms "lunatic," "insane," and "non compos mentis" as including "all persons of unsound mind." It is unclear what constitutes an "unsound mind" for purposes of tolling the running of the limitations period until removal of the disability.
In Alabama Power Co. v. Shaw, 215 Ala. 436, 111 So. 17 (1926), the Court held that "insanity" encompasses temporary unsoundness of the mind and recognized that the word "signifies any derangement of the mind that deprives it of the power to reason or will intelligently." 215 Ala. at 440, 111 So. at 20 (quoting Johnson v. Maine & N.B. Ins. Co., 83 Me. 182, 22 A. 107 (1891)). Shaw was injured in an industrial accident when he was struck in the head by a shattered pulley, and, for a period of time exceeding the time prescribed by the statute of limitations, Shaw was of "unsound mind." Id. Based on Shaw and decisions from other jurisdictions, the Travises contend that the insanity tolling provision should be construed broadly and liberally to apply to situations where a person, otherwise competent to marry, rear children, and remain employed, is unable to comprehend specific legal rights pertaining to a potential cause of action. Relying on Shaw, the Travises argue that the Court's acceptance of temporary insanity as a situation that will toll the running of the limitations period, together with the Court's recognition that the statutory term "insanity" is both "unexplained and unlimited," Shaw, 215 Ala. at 440, 111 So. at 20, supports a construction of § 6-2-8 that would be consistent with *1353 cases from other jurisdictions allowing a jury to determine whether memory repression constitutes a form of insanity.
Most jurisdictions that have considered whether to apply insanity tolling provisions to cases of repressed memory have refused to apply them. Lemmerman v. Fealk, 449 Mich. 56, 534 N.W.2d 695 (1995); Lovelace v. Keohane, 831 P.2d 624 (Okla.1992); O'Neal v. Division of Family Servs., 821 P.2d 1139 (Utah 1991); Burpee v. Burpee, 152 Misc.2d 466, 578 N.Y.S.2d 359 (Sup.Ct.1991); Hildebrand v. Hildebrand, 736 F. Supp. 1512 (S.D.Ind.1990); Whatcott v. Whatcott, 790 P.2d 578 (Utah App.1990); see also Russell G. Donaldson, Annotation, Running of Limitations Against Action for Civil Damages for Sexual Abuse of Child, 9 A.L.R.5th 321, 353 (1993).
In Lemmerman, the Michigan Supreme Court determined that the policy goal of maintaining "some indicia of assurance of reliable fact finding," furthered by the statute of limitations, would be compromised by allowing repressed memory to function as an insanity tolling mechanism.[2] 449 Mich. at 74, 534 N.W.2d at 702. Lemmerman brought an action in 1990 against her father's estate, her mother, and her aunt, alleging assault and battery and intentional infliction of emotional distress; the claims arose out of alleged physical and sexual abuse that had occurred between the years 1939 and 1949. See 449 Mich. at 62, 534 N.W.2d at 697. In holding for the defendants, the court expressed concern that the current lack of a consensus concerning the reliability of the repressed memory theory and the inherent subjectiveness of placing a plaintiff in the "discretionary position to allege the onset of the disability of repressed memory and the termination of that condition, [would] vitiate the statute of limitations as a defense." 449 Mich. at 76, 534 N.W.2d at 703. The court indicated that the legislature was the more appropriate forum for parties seeking recognition of the suppressed memory theory. 449 Mich. at 77, 534 N.W.2d at 703.
In Lovelace v. Keohane, the Oklahoma Supreme Court considered the case of a plaintiff who claimed to suffer from multiple personality disorder that she said was a result of repeated instances of sexual abuse suffered as a minor and suffered at the hands of both her father and a priest. The court considered whether to accept memory repression as an insanity disability that would toll the running of the limitations period. 831 P.2d at 626-27. Because Lovelace was a "highly respected social worker" and had received a master's degree with honors, the court concluded that she was able to conduct her business affairs to such an extent that she could not assert the existence of a legal disability that would toll the running of the limitations period. Id. at 629. The court stated that although it had not defined the term "legal disability," it could hold as a matter of law that repressed memory does not constitute a legal disability in cases where the plaintiff has demonstrated an ability to manage her affairs effectively. Id.
In Burpee v. Burpee, the plaintiff claimed that as a child she suffered years of sexual abuse by her father and that the years of abuse caused her to repress the memories of the events until therapy "triggered" a retrieval of the memories 15 years after the last incidence of abuse. 578 N.Y.S.2d at 360. Burpee argued that the "psychological trauma from the experience caus[ed] her to repress her memory of it until the defendant's 1990 admission of misconduct [during therapy]," and that because of this repression, the application of the statute of limitations should be tolled under an insanity theory. Id. The New York court rejected Burpee's contention by reiterating that the New York insanity tolling provision is intended "`to extend... to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society.'" Id. at 361 (quoting McCarthy v. Volkswagen of America, Inc., 55 N.Y.2d 543, 435 N.E.2d 1072, 1075, 450 N.Y.S.2d 457, 460 (1982)). According to the court, Burpee's alleged memory loss due to the trauma did not rise *1354 to the level of an overall inability to function in society. Id.
In O'Neal v. Division of Family Servs., the Utah Supreme Court, quoting McCarthy, supra, borrowed from the New York interpretation of mental incompetency and held that a person able to obtain a post-secondary education, hold down a series of jobs, and provide basic necessities such as food, shelter, and clothing, could not avail himself of the insanity tolling provision based on the repressed memory theory, because the ability to accomplish normal activities precluded, as a matter of law, a conclusion that the person had an "overall inability to function in society." 821 P.2d at 1142; see Whatcott v. Whatcott, 790 P.2d 578, 581 (Utah App.1990) (rejecting plaintiff's insanity argument because he had received a college degree, had married, and had held a job). O'Neal argued that he could avail himself of the insanity tolling mechanism simply by being unable to comprehend his specific legal rights related to the abuse. 821 P.2d at 1142. In rejecting the broad interpretation of insanity suggested by O'Neal, the court stated:
Id. at 1143.
Among the cases cited by the Travises are cases generally defining the degree of incapacitation required for a party to fall within the definition of "insanity." The common theme running throughout these cases is that persons need not be wholly incapacitated to avail themselves of insanity tolling provisions. Rather, according to the Travises, a person can be insane for purposes of insanity tolling provisions simply by having a substantial inability to comprehend particular legal rights, notwithstanding that the person has the ability to carry on all other activities competently. See Harrington v. County of Ramsey, 279 N.W.2d 791 (Minn.1979); In re: Kappel's Guardianship, 242 Iowa 1021, 47 N.W.2d 825 (1951).
The Travises argue that the question whether the combination of post-traumatic stress disorder and repressed memory constitutes insanity is a fact question appropriate for a jury to determine. The Travises cite a number of cases in support of this proposition. See Jones v. Jones, 242 N.J.Super. 195, 576 A.2d 316, 321 (App.Div.), cert. denied, 122 N.J. 418, 585 A.2d 412 (1990); Phillips v. Sugrue, 800 F. Supp. 789 (E.D.Ark.1992); Leonard v. England, 115 N.C.App. 103, 445 S.E.2d 50 (1994). In each of those cases, the court did not address the speculative nature of the repressed memory theory.
The Travises also rely on cases from other jurisdictions that have considered similar claims of memory repression as constituting an exception to the strict application of the statute of limitations and have considered those claims in light of "discovery rules" available in these jurisdictions, either by statute or judicial construction (i.e., rules providing that a limitations period will run from the date of the discovery of the cause of action). See Tyson v. Tyson, 107 Wash. 2d 72, 727 P.2d 226 (1986); DeRose v. Carswell, 196 Cal. App. 3d 1011, 242 Cal. Rptr. 368 (1987); Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23 (1987), review denied, 144 Wis.2d 953, 428 N.W.2d 552 (1988); E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817 (1988); Johnson v. Johnson, 701 F. Supp. 1363 (N.D.Ill.1988); Osland v. Osland, 442 N.W.2d 907 (N.D. 1989); Hildebrand, supra; Evans v. Eckelman, 216 Cal. App. 3d 1609, 265 Cal. Rptr. 605 (1990); Baily v. Lewis, 763 F. Supp. 802 (E.D.Pa.), aff'd, 950 F.2d 721, 722 (3d Cir. 1991); Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y.1991). These cases are not persuasive, because this Court will not apply the discovery rule unless it is specifically prescribed by the Legislature. Garrett v. Raytheon Co., 368 So. 2d 516, 521 (Ala.1979). The *1355 discovery rule in Alabama is statutorily prescribed for certain actions, e.g., asbestos-exposure actions, § 6-2-30(b); fraud actions, § 6-2-3; medical liability actions, § 6-5-482(a); product liability actions, § 6-5-502(b); and legal services liability actions, § 6-5-574(a), Ala. Code 1975.
The ultimate consideration in determining whether to allow the Travises' claims to survive through application of the insanity disability tolling provision is whether the policy goals furthered and protected by the statute of limitations would remain intact if that were allowed. At its core, the statute of limitations advances the truth-seeking function of our justice system, promotes efficiency by giving plaintiffs an incentive to timely pursue claims, and promotes stability by protecting defendants from stale claims. The essence of the Travises' argument is that plaintiffs should be able to use the tolling provision in any situation where they can demonstrate an inability to comprehend a specific legal right, or to recall events that happened many years before, notwithstanding the fact that they have been capable of living an independent, normal, and productive life as to all other matters. Such an expansive interpretation would undermine the purpose of the statutes of limitations. There is no established acceptance of repressed memory as a psychological phenomenon. If this Court accepted it as constituting "insanity," then plaintiffs, such as the Travises, would be in subjective control of the limitations period and would be able to assert stale claims without sufficient justification or sufficient guaranties of accurate fact-finding.
We reject the Travises' argument that Shaw, supra, supports an expansive interpretation of the term "insanity." In Shaw, the Court recognized the following meaning of "insanity": "[I]t signifies any derangement of the mind that deprives it of the power to reason or will intelligently." 215 Ala. at 440, 111 So. at 20. Because in Shaw the Court allowed a tolling of the limitations period because of temporary insanity, the Travises argue for recognition of "claim-specific" insanity. We are not persuaded by the Travises' repeated insinuation that the Shaw Court, by stating that insanity is not limited to a "chronic or fixed condition," intended to bring within the protection of the insanity tolling provision those persons claiming to suffer from a mental illness that affects only an understanding of a particular legal right. This argument ignores both the context of the case and the obvious consequences flowing from such an interpretation.
Although we sympathize with victims of childhood sexual abuse, we cannot allow the insanity tolling provision to become a means of resurrecting stale claims. To interpret the statutes of limitations as the Travises ask us to would invite unwelcome results. Therefore, we hold that § 6-2-8, Ala. Code 1975, does not allow for an extension of the statutory limitations period for actions based on alleged repressed memories.
Each cause of action alleged by the Travises accrued no later than the last alleged actionable contact by Fr. Ziter with Steve Travis, which would have occurred in 1979. Because the Travises did not file this action until 1994, the limitations period for each of the Travises' claims has run. Therefore, the statutes bar the claims. See §§ 6-2-34(1), -38(l), and -38(n), Ala. Code 1975.
Based on the foregoing discussion, we affirm the judgment for each defendant on each count.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
[1] It is undisputed that if no "tolling" provision applies, then the limitations period has run on each of the Travises' claims. The Travises' complaint was not filed until 15 years after the last alleged incident of physical and sexual abuse. Actions alleging negligence, wantonness, the tort of outrage, breach of fiduciary duty, or civil conspiracy must be brought within two years after the accrual of the cause of action. § 6-2-38(l), Ala. Code 1975. Actions seeking a recovery based upon the theory of respondeat superior must be brought within two years after the accrual of the cause of action. § 6-2-38(n), Ala. Code 1975. However, with the exception of the Travises' assault and battery claims, the appropriate statutory limitations period would presumably be one year because those other claims accrued before 1985, the year in which the one-year limitations provision of § 6-2-39 was repealed and § 6-2-38 was amended to allow two years for filing claims formerly covered by § 6-2-39. See Burns v. Sealy Ins. Agency, Inc., 545 So. 2d 763 (Ala.1989). An action alleging assault and battery must be brought within six years after the accrual of the cause of action. § 6-2-34(1), Ala. Code 1975.
[2] Michigan defines "insanity" as "a mental derangement such as to prevent the sufferer from comprehending rights he or she is otherwise bound to know." Mich. Comp. Laws § 600.5851(2) (1987). | July 12, 1996 |
08db8c73-4d67-45b3-8162-153c7ff45742 | Ex Parte Knotts | 686 So. 2d 486 | 1950239 | Alabama | Alabama Supreme Court | 686 So. 2d 486 (1996)
Ex parte William KNOTTS.
Re William Thomas Knotts
v.
State.
1950239.
Supreme Court of Alabama.
July 12, 1996.
Rehearing Denied November 22, 1996.
*487 Richard Lawrence, J. Paul Lowery, Montgomery, Tanya Greene, Atlanta, GA, for Petitioner.
Jeff Sessions, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for Respondent.
Prior report: Ala.Cr.App., 686 So. 2d 484.
PER CURIAM.
Having read and considered the record and the briefs of counsel, and having considered the arguments, this Court has concluded that the judgment of the Court of Criminal Appeals must be affirmed. A.R.App.P. 39(k).
AFFIRMED.
MADDOX, SHORES, KENNEDY, and COOK, JJ., concur.
HOUSTON and BUTTS, JJ., concur in the result.
HOOPER, C.J., recuses.
HOUSTON, Justice (concurring in the result).
This is a case in which this Court is required to notice plain error. The defendant was sentenced to death, but not by the unanimous decision of an impartial 12-person jury, as was required by the law in place at the time of the ratification of the Constitution of Alabama of 1901. I write to criticize the majority's unprincipled application of § 11 of that Constitution ("That the right to trial by jury shall remain inviolate."). See Henderson v. Alabama Power Co., 627 So. 2d 878, 903-14 (Ala.1993) (Houston, J., dissenting); Ex parte Giles, 632 So. 2d 577, 587-89 (Ala.1993) (Houston, J., concurring in the result), cert. denied, 512 U.S. 1213, 114 S. Ct. 2694, 129 L. Ed. 2d 825 (1994); Smith v. Schulte, 671 So. 2d 1334 (Ala.1995) (Houston, J., dissenting), cert. denied, ___ U.S. ___, 116 S. Ct. 1849, 134 L. Ed. 2d 950 (1996); Ex parte Jackson, 672 So. 2d 810 (Ala.1995) (Houston, J., concurring in the result); American Legion Post No. 57 v. Leahey, 681 So. 2d 1337 (Ala.1996) (Houston, J., dissenting). I believe that the majority of this Court errs in striking down duly enacted statutes of the legislative branch of government as violating § 11, but does not err in upholding the legislative enactment of Act No. 607, Acts of Alabama 1977 (now codified at Ala.Code 1975, §§ 13A-5-46 and -47). However, my basis for this belief has been severely challenged by a majority of this Court. See Henderson v. Alabama Power Co., 627 So. 2d at 891-93. In answer to that challenge, I adopt Justice Scalia's statement in BMW of North America v. Gore, ___ U.S. ___, ___, 116 S. Ct. 1589, 1610, 134 L. Ed. 2d 809 (1996) (Scalia, J., dissenting): "When, however, a constitutional doctrine adopted by the Court is not only mistaken but also insusceptible of principled application, I do not feel bound to give it stare decisis effect indeed, I do not feel justified in doing so." Still, I am concerned that if the majority of this Court is not mistaken in its interpretation of § 11 of the Constitution as it relates to the last paragraph of § 104, Ala. Const. of 1901, then William T. Knotts may be executed without due process of law. | July 12, 1996 |
2c4ef3b4-c653-40a0-b2d8-f2ed42ace56b | Ex Parte Gentry | 689 So. 2d 916 | 1940471 | Alabama | Alabama Supreme Court | 689 So. 2d 916 (1996)
Ex parte Joseph Ward GENTRY.
(Re Joseph Ward Gentry v. State).
1940471.
Supreme Court of Alabama.
July 12, 1996.
Rehearing Denied October 25, 1996.
*917 Randall S. Susskind, Montgomery; and William K. Delgrosso, Birmingham, for Petitioner.
Jeff Sessions, Atty. Gen., and Stephen N. Dodd, Asst. Atty. Gen., for Respondent.
ALMON, Justice.
This Court has granted the writ of certiorari as a matter of right to review the judgment of the Court of Criminal Appeals upholding Joseph Ward Gentry's capital murder conviction and death sentence. Rule 39(c), Ala. R.App. P. Gentry was convicted of the capital offense of murder committed during a burglary in the first degree, Ala. Code 1975, § 13A-5-40(a)(4). Our review concerns the scope of a defendant's "remaining unlawfully" in a dwelling (or other building) as an element of burglary. Specifically, if a person who has permission to be in a dwelling murders the occupant, has that person also committed burglary by virtue of "remaining unlawfully" in the dwelling, on the basis that the jury could infer from the fact that a struggle preceded the murder that the occupant must have revoked the person's permission to be there?
Gentry was convicted of capital murder for killing Kimberly Diane Hill "during a burglary." The Court of Criminal Appeals reversed that conviction and remanded the case for a second trial, based on error in allowing the jury to separate over Gentry's objection. Gentry v. State, 595 So. 2d 548 (Ala.Crim.App.1991) (Gentry I). Gentry was retried and again convicted, and the Court of Criminal Appeals has affirmed the conviction and the sentence of death. The facts surrounding Gentry's crime and conviction are set forth in the Court of Criminal Appeals' opinions. See 595 So. 2d 548 and Gentry v. State, 689 So. 2d 894 (Ala.Crim.App.1994).
The circumstances allowing imposition of the death penalty have been limited by the United States Supreme Court. See, e.g., Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S. Ct. 1759, 1764, 64 L. Ed. 2d 398, 406 (1980); Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983). Under the Eighth Amendment to the United States Constitution, capital murder statutes must "genuinely narrow" the class of persons eligible for the death penalty so that capital punishment is reserved for the most egregious crimes. Zant, supra, 462 U.S. at 877, 103 S. Ct. at 2742, 77 L. Ed. 2d at 249-50. Standing alone, an intentional murder is not a capital crime. Something more must be established to elevate an intentional murder to a capital offense. Our statute defining capital offenses lists a number of circumstances that can cause an intentional murder to be treated as a capital murder. See § 13A-5-40(a)(1) through (a)(18), Ala. Code 1975. In Gentry's case, the State alleged and sought to prove a first-degree burglary as the additional element needed to make his crime a capital offense.
Gentry argues that the State failed to prove a burglary. The first-degree-burglary statute provides:
§ 13A-7-5, Ala. Code 1975 (emphasis added).[1] "A person `enters or remains unlawfully' in or upon premises when he is not licensed, invited or privileged to do so." § 13A-7-1(4), Ala. Code 1975. The language "remains unlawfully" is intended to cover cases where "a person enters with license or privilege but remains after termination of such license or privilege." Commentary, § 13A-7-1, Ala. Code 1975.
Gentry had Hill's consent to enter her apartment at any time, and he lawfully possessed a set of keys to her apartment. Hill and Gentry had been romantically involved, and Hill had provided Gentry with the keys to her apartment. Hence, the State does not contend that Gentry entered unlawfully, only that he "remained unlawfully." The circuit court instructed the jury that it could infer that Gentry had remained unlawfully in Hill's apartment from evidence of a struggle leading up to the murder:
(Emphasis added.) Thus, the evidence establishing the struggle and the ensuing murder is the very evidence used to establish a "burglary" and to make this killing a capital offense.
According to Gentry, this result is at odds with the plain language of the burglary statute; he also argues that the trial court's interpretation of our capital punishment statute as it relates to the offense of murder committed during a burglary is unconstitutional, in light of the United States Supreme Court decisions in Gregg, supra, Godfrey, supra, and Zant, supra. Gentry argues that the circuit court's interpretation of the burglary statute, as evidenced by the jury instruction, improperly elevates almost every intentional murder committed indoors into capital murder, and would likewise make virtually any crime committed indoors a burglary as well. Gentry contends that the State cannot properly use this interpretation to meet its burden of making out a prima facie case of first- or second-degree burglary as part of its proof necessary to elevate the crime to capital murder based on § 13A-5-40(a)(4), Ala. Code 1975.
The statutory crime of burglary as defined in § 13A-7-1 et seq. is broader than the narrowly defined common law crime of burglary, but it is instructive to consider the historical antecedent.
W. LaFave and A. Scott, Handbook on Criminal Law, § 96, p. 708 (1972) (footnotes omitted).
R. Perkins and R. Boyce, Criminal Law, Ch. 3, § 1, p. 250 (3d ed. 1982) (footnotes omitted; emphasis in original).
Although the statute does away with the common law requirement of a "breaking" and allows a burglary conviction of one who merely "remains unlawfully," it does define the crime of "burglary" as an offense separate from the crime one intends to commit while in the building. Thus, "remaining unlawfully" must be proved by some evidence other than evidence that the defendant committed a crime while in the building. Burglary is often a more serious offense than the underlying crime, which may be only a misdemeanor. Thus, there must be some distinguishing element establishing a separate crime of burglary.
The commentary to § 13A-7-1 illustrates the intended operation of "remains unlawfully":
In this example, the act of "secreting himself" is an act separate from the larceny that the person intends to later commit. Such a person knowingly remains in the store after it is closed to the public, knowing that his license or privilege to remain extends only until the time of closing.
Gentry points out that the statutory language "remains unlawfully," which appears throughout the Code sections dealing with burglary and trespass, was derived from the New York Revised Penal Law. See N.Y. Penal Law §§ 140.00, 140.30 (McKinney 1988); Commentary, § 13A-7-4, Ala. Code 1975. The New York courts have construed this provision as requiring more than evidence that the defendant committed a crime while on the premises:
People v. Hutchinson, 124 Misc.2d 487, 490, 477 N.Y.S.2d 965, 967 (Sup.Ct.1984), aff'd, 121 A.D.2d 849, 503 N.Y.S.2d 702 (1986), appeal dismissed, 68 N.Y.2d 770, 506 N.Y.S.2d 1054, 498 N.E.2d 156 (1986) (emphasis added); see People v. Gaines, 74 N.Y.2d 358, 546 N.E.2d 913, 916, 547 N.Y.S.2d 620 (1989); People v. Ludlowe, 117 Misc.2d 567, 458 N.Y.S.2d 833, 835 (Sup.Ct. 1983).
On the other hand, the State relies on a series of cases from the Court of Criminal Appeals that allow juries to infer the revocation of license or privilege simply from the evidence regarding the crime committed *920 within the building. See Stewart v. State, 601 So. 2d 491 (Ala.Crim.App.1992) (citing Gentry I), aff'd on return to remand, 659 So. 2d 120 (Ala.Crim.App.1992), aff'd in part, rev'd in part, Ex parte Stewart, 659 So. 2d 122 (Ala.1993); Gentry I, supra; Moss v. State, 536 So. 2d 129 (Ala.Crim.App.1988); Johnson v. State, 473 So. 2d 607 (Ala.Crim. App.1985).
In Johnson v. State, 473 So. 2d 607 (Ala. Crim.App.1985), Johnson was sentenced to life imprisonment for a capital murder committed during a burglary and a robbery. Johnson entered the victim's home under the pretext of wanting to use her telephone and, once inside, beat her to death and removed money from her purse. Id. In upholding Johnson's conviction, the Court of Criminal Appeals held that a termination of his license to remain on the victim's premises could be inferred from the circumstantial evidence of a struggle and a beating. 473 So. 2d at 610. The court stated: "Clearly, the defendant `remained unlawfully' in the dwelling from the point at which he decided to commit a felony." 473 So. 2d at 609.
In so holding, the Johnson court relied upon Davis v. State, 44 Ala.App. 284, 288, 207 So. 2d 649, 653 (1967), cert. denied, 281 Ala. 718, 207 So. 2d 656 (1968), for the proposition that non-consent, as an element of burglary, can be proven by circumstantial evidence. In both Johnson and Davis, the defendant and the victim did not know one another and the jury could have found that the defendant's initial entry was unlawful. Johnson, supra, at 608; Davis, 44 Ala.App. at 288, 207 So. 2d at 651. In addition, the murder in Johnson occurred during a robbery as well as during a burglary; this fact also operates to elevate a murder to a capital offense. § 13A-5-40(a)(2), Ala. Code 1975.
The Court of Criminal Appeals followed this interpretation of the burglary statute in Moss v. State, 536 So. 2d 129, 133-34 (Ala.Crim.App.1988). Moss was convicted of murder committed during a burglary, and, unlike the situation in Johnson, there was very little circumstantial evidence indicating that Moss's license to remain had been revoked or that he had made an unlawful entry.[2] Like Gentry, Moss used a key to enter the victim's apartment. However, the court ruled that evidence of the struggle and the murder was sufficient to support an inference that Moss had remained unlawfully. Moss, supra, at 133 (quoting at length from Johnson, 473 So.2d at 609-11).
In Stewart v. State, 601 So. 2d 491 (Ala. Crim.App.1992), aff'd on return to remand, 659 So. 2d 120 (Ala.Crim.App.1992), the Court of Criminal Appeals affirmed Stewart's conviction and death sentence for murder committed during the course of burglary and kidnapping. Stewart drove to his former wife's mobile home, and, after entering, he beat her, dragged her outside, and, in attempting to force her into his truck, shot and killed her. 601 So. 2d at 496-97. Stewart did not knock on his former wife's door; instead, he "jarred the door open and went on in." 601 So. 2d at 498. According to the Court of Criminal Appeals, this was sufficient evidence that Stewart entered unlawfully for purposes of the burglary conviction. Id. In dicta, the court indicated that Stewart could have been found guilty of burglary even if he had entered the mobile home lawfully, based on the "remains unlawfully" construction given the burglary statute in Johnson, supra, and Moss, supra. Id. However, our affirmance of the judgment of the Court of Criminal Appeals, as to Stewart's conviction, is not to be taken as approval of that dicta.
In Gentry I, 595 So. 2d 548 (Ala.Crim.App. 1991), the Court of Criminal Appeals, after noting that all parties agreed that the judgment of the circuit court must be reversed because of the court's error in allowing the jury to separate, addressed the burglary statute's operation with regard to the "remains unlawfully" language. The court reiterated its holdings from Johnson and Moss, supra, and quoted at length the holding from *921 a Florida appellate court decision interpreting Florida's burglary statute. Gentry I, at 551-53 (quoting Ray v. State, 522 So. 2d 963, 965-67 (Fla.Dist.Ct.App.1988), review denied, 531 So. 2d 168 (Fla.1988)).
Although this Court denied Gentry's petition for the writ of certiorari after the first appeal to the Court of Criminal Appeals, Gentry I, 595 So. 2d 548 (Ala.Crim.App.1991), the denial was not a ruling on the merits. Kilpatrick v. State, 291 Ala. 628, 285 So. 2d 525 (1973). The denial of certiorari is particularly nondispositive of the merits of this issue because Gentry was seeking review of an adverse holding even though the judgment was in his favor, reversing his conviction.
Similarly, the Court of Criminal Appeals has cited this construction of "remains unlawfully" to uphold burglary convictions as such. See Glass v. State, 671 So. 2d 114 (Ala.Crim.App.1995); Weaver v. State, 564 So. 2d 1007, 1010 (Ala.Crim.App.1989); Minshew v. State, 542 So. 2d 307 (Ala.Crim.App. 1988). In all of these cases, there was evidence that the initial entry was unlawful, and the court cited the Johnson line of cases only for an alternative holding that the defendant had remained unlawfully on the victim's premises.
We disagree with this interpretation. Now that the issue is squarely presented to us, we hold that to establish an "unlawful remaining" when the defendant has a license or privilege to be on the premises, the State must present evidence other than evidence that the defendant committed a crime in a dwelling or a building owned or controlled by the victim. To hold otherwise would vitiate the statutory elements of first- and second-degree burglary. Moreover, interpreting § 13A-5-7, Ala. Code 1975, as the State suggests would violate the constitutional limitations designed to reserve capital punishment for only the most egregious crimes, by expanding the scope of the death penalty to apply to intentional murders distinguishable from other intentional murders only because they occur indoors. Zant, supra.
To the extent that the above-cited opinions of the Court of Criminal Appeals are inconsistent with our holding in this case, those opinions are hereby overruled. See Stewart v. State, 601 So. 2d 491 (Ala.Crim.App.1992), aff'd on return to remand, 659 So. 2d 120 (Ala.Crim.App.1992), aff'd in part, rev'd in part, Ex parte Stewart, 659 So. 2d 122 (Ala. 1993); Gentry I, 595 So. 2d 548 (Ala.Crim. App.1991); Moss v. State, 536 So. 2d 129 (Ala. Crim.App.1988); Johnson v. State, 473 So. 2d 607 (Ala.Crim.App.1985); Glass v. State, 671 So. 2d 114 (Ala.Crim.App.1995); Weaver v. State, 564 So. 2d 1007, 1010 (Ala.Crim.App. 1989); Minshew v. State, 542 So. 2d 307 (Ala. Crim.App.1988).
There is no evidence of a burglary in this case. Gentry simply used the key that Hill had given him to enter her apartment. When she returned home, he killed her. There was no separate crime of burglary simply because one could infer that she realized he was attacking her and therefore may or must have "revoked his privilege to remain." It was, therefore, error to instruct the jury that for purposes of determining whether the defendant had committed a burglary, "the fact that the victim had terminated the defendant's license or privilege to be present in the victim's apartment can be inferred from the circumstances that a struggle took place." This jury instruction had the effect of relieving the State of its burden of presenting a prima facie case of burglary. The burden is on the State to offer sufficient evidence to prove each element of a charged offense. Warren v. State, 292 Ala. 71, 288 So. 2d 826 (1973).
For the foregoing reasons, the judgment of the Court of Criminal Appeals is reversed and this cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
SHORES,[*] HOUSTON, KENNEDY, and COOK,[*] JJ., concur.
HOOPER, C.J., and MADDOX and BUTTS, JJ., dissent.
*922 MADDOX, Justice (dissenting).
I will begin by setting out the facts of this case. The Court of Criminal Appeals held that the state's evidence showed the following:
Gentry v. State, 689 So. 2d 894, 898 (Ala.Crim. App.1994).
I was almost persuaded to concur with the opinion of the majority in its conclusion that "[t]here is no evidence of a burglary in this case," 689 So. 2d at 921, and, therefore, no capital offense, because the defendant had a key to the victim's apartment. However, after reviewing the common law principles relating to burglary, and the provisions of Alabama's statute that make it a crime of burglary to remain unlawfully in a dwelling with intent to commit a crime therein,[3]I am now convinced that the Court of Criminal Appeals correctly held that the burglary *923 charge could be supported by proof of a nonconsensual remaining; thereby justifying the sentence of death for murder committed during the course of a burglary.[4] I am also convinced, based on the particular facts and circumstances proved in this case, that there was a "constructive breaking."
The facts show that the defendant committed a gruesome premeditated killing, and the gravamen of the offense of capital murder is an "intentional killing." Ex parte Kyzer, 399 So. 2d 330 (Ala.1981); Beck v. State, 396 So. 2d 645 (Ala.1980). In Kyzer, this Court, in discussing what constituted the "offense" and what constituted the "aggravation," said that "there is no disagreement in court decisions that the gravamen of the capital offense is the `intentional killing.'" 399 So. 2d at 335. In Beck, this Court held that each of the capital crimes specified by the legislature "requires an intentional killing with aggravation, and not some crime other than homicide under aggravated circumstances." 396 So. 2d at 662. (Emphasis omitted.) Thus the State must prove that there was an intentional killing with aggravation, which in this case is the burglary.
Common law burglary was an offense against habitation and was committed by the breaking and entering of the dwelling of another in the nighttime with intent to commit a felony therein. There were six elements: (1) the breach, (2) the entry, (3) the dwelling, (4) "of another," (5) the nighttime, and (6) burglarious intent. R. Perkins, Perkins on Criminal Law, p. 192, 195 (2d ed. 1969). The primary objective of the law of common law burglary and of burglary statutes was, and it still is, to conserve human life, not property. Reeves v. State, 245 Ala. 237, 240, 16 So. 2d 699, 702 (1943).
The contest in this case between the State and the defendant is over whether the State proved a "breaking," because the defendant had a key to the apartment where the crime was committed. I believe that there was; hence, I dissent.
The question whether particular conduct constitutes a breaking has been presented in many cases for many, many years, involving many differing fact situations. The question has plagued judges, intrigued law professors, caused legal scholars to disagree, and frustrated law students trying to answer difficult law school examination questions on the subject.
Moreover, the question whether there is a breaking if the defendant has consent to enter the premises of another has been especially troublesome. This Court was called upon to address that question in Brown v. State, 55 Ala. 123 (1876), using common law principles without the benefit of a statute that addresses this particular situation. The facts in Brown, as set out in the report of the case, were:
55 Ala. at 123-24.
This Court said:
Brown, 55 Ala. at 124-25. (Emphasis added.)
I do not know which English statute this Court was referring to in Brown, but R. Perkins, in his treatise on criminal law, states that "[a]n English statute in 1713 provided that one who entered without breaking should be guilty of burglary if he broke out of the place, provided all other elements of the crime were present." R. Perkins, Perkins on Criminal Law, p. 197 (2d ed. 1969).[5]
*925 It is probable that this Court was referring to the English statute cited as 12 Anne c. 7, which reads: "`that if any person shall enter into the mansion or dwelling house of another by day or by night, without breaking the same, with an intent to commit felony; or, being in such house, shall commit any felony; and shall in the night-time break the said house to get out of the same,'it shall be burglary."[6] The effect of that statute, according to legal scholars, "made it burglary for a person to enter without breaking, with intent to commit a felony, or, being in the house, to commit any felony, and then in the nighttime break out of the house." 1 Brill, Cyclopedia of Criminal Law § 472 (1922).
It is my opinion that when this Court, in Brown, stated that "[i]n England, they have a statute, which makes the escaping from a house, by breaking, etc., after committing a felony in the house, burglary in the offender," and that "[w]e have no such statute here," the Court clearly implied that the conviction in Brown would have been upheld if Alabama had had such a statute on the books. Alabama now has such a statute, and I believe that Brown clearly supports the proposition that the conduct by the defendant in this case constituted "burglary in the offender." This conclusion is based upon my review of the principles of common law burglary and Alabama case law relating to common law burglary, as modified by statute. Moss v. State, 536 So. 2d 129 (Ala.Cr.App. 1988), and Minshew v. State, 542 So. 2d 307 (Ala.Cr.App.1988).
In conclusion, it appears to me that there was overwhelming evidence that the defendant, even though he had a key to the victim's apartment, formed an intent, before he entered, to kill the victim and carried out that intent after he gained entry and lay in wait. If there was ever a set of facts proving a premeditated and gruesome killing deserving of the death penalty, this case presents it. I realize that the State was required to prove the aggravated circumstance, i.e., that the intentional killing was committed during a burglary, but it appears to me that the defendant's conduct in this case, whether described as "constructive breaking," "breaking out" or "unlawfully remaining," constitutes burglary in the first degree as defined by our current Criminal Code[7] and thus makes this particular murder a capital offense;[8] consequently, I would affirm the judgment of the Court of Criminal Appeals.
HOOPER, C.J., concurs.
[1] The definition of burglary in the second degree in § 13A-7-6(a) is virtually identical except that it uses the word "building" where § 13A-7-5(a) uses the word "dwelling" and uses the phrase "theft or a felony" where § 13A-7-5(a) uses the word "crime." Thus, the question of "remaining unlawfully" may pertain to a "building" as well as to a "dwelling." A capital murder prosecution can be based on a murder that occurs during a second-degree burglary. § 13A-5-40(a)(4). When discussing the application of "remains unlawfully" in general, we will speak broadly of remaining in a "building" with intent to commit a "crime," so as to encompass both first- and second-degree burglary.
[2] Both Moss and Johnson were sentenced to life imprisonment without possibility of parole, so neither of their appeals came to this Court for plain-error review, see Rule 45A, Ala. R.App. P., as they would have if the defendants had been sentenced to death. This Court denied certiorari petitions in both cases, but the denial of certiorari review is not a ruling on the merits. Kilpatrick v. State, 291 Ala. 628, 285 So. 2d 525 (1973).
[*] Although Justice Shores and Justice Cook were not present for oral argument, they have listened to the tape of oral argument.
[3] § 13A-7-5, Ala. Code 1975:
"Burglary in the first degree.
"(a) A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in [a] dwelling or in immediate flight therefrom, he or another participant in the crime:
"(1) Is armed with explosives or a deadly weapon; or
"(2) Causes physical injury to any person who is not a participant in the crime; or
"(3) Uses or threatens the immediate use of a dangerous instrument.
"(b) Burglary in the first degree is a Class A felony." Source: Acts 1977, No. 607, p. 812, § 2610; Acts 1979, No. 79-471, p. 862, § 1.
[4] The Court of Criminal Appeals, noting that the defendant had raised in his first trial and in his first appeal the same issue now presented, said the following:
"[W]e ruled against him, Gentry v. State, 595 So. 2d 548 (Ala.Cr.App.1991), cert. denied, 595 So. 2d 548 (Ala.Cr.App.1992), relying on Moss v. State, 536 So. 2d 129 (Ala.Cr.App.1988), and Minshew v. State, 542 So. 2d 307 (Ala.Cr.App. 1988). We held in Gentry that even if the entry was consensual, a burglary charge could be supported by a nonconsensual remaining and the fact that the victim terminated the appellant's license or privilege to remain on the premises can be inferred where, as here, a struggle took place and the victim was beaten. We further held that the trial court properly submitted to the jury the issue of whether the appellant entered or remained unlawfully in the victim's apartment. The evidence presented at both trials is substantially the same. No new evidence was presented in the second trial of the case that would cause us to change our earlier opinion on this issue. The authorities cited by the appellant on this second appeal in support of his contention are no more persuasive than those cited on his first appeal. We reaffirm and adopt our prior holding on this issue. The trial court's denial of the motion for a judgment of acquittal on this ground was proper. The trial court properly submitted the issue to the jury."
689 So. 2d at 905.
[5] Perkins, in a footnote to this statement that I quote from his treatise, cited the English statute in 1713 as 12 Anne c. 7, and included this comment: "There have been some suggestions that this statute merely removed a doubt and actually codified the common law. See 2 Bishop, New Criminal Law § 99 (8th ed. 1892)." But he also noted, "Hale says it was not burglary. 1 Hale P.C. 554." Perkins commented that "[i]t is believed that the notion of substituting a `breaking out' for a `breaking in,' so far as common-law burglary is concerned, grew out of misinterpretations of statements dealing with breaking into an inner room." There are cases that apply a "constructive breaking" analysis. In State v. Howard, 64 S.C. 344, 42 S.E. 173 (1902), a servant who had the right to lodge in his master's dwelling, but who being outside came in either by opening the door or by raising the sash, not with intent to lodge therein but with intent to steal, and actually stole and carried away his master's goods, committed burglary. In Davis v. Commonwealth, 132 Va. 521, 110 S.E. 356 (1922), the court held that a breaking, as an element of the crime of burglary, could be either actual or constructive.
[6] 2 Bishop, New Commentaries on The Criminal LawThe Specific Offenses § 99 (1892), quoting 12 Anne, stat. 1, c. 7, § 3 (1713), and 1 Hawk. P.C. Curw. ed. p. 132, § 15; 2 East P.C. 489.
[7] § 13A-7-5, Ala. Code 1975.
[8] § 13A-5-40(a)(4), Ala. Code 1975 | July 12, 1996 |
650339bc-c9f2-4431-ac24-8f20c9bec429 | Ex Parte Holland Mfg. Co. | 689 So. 2d 65 | 1950133 | Alabama | Alabama Supreme Court | 689 So. 2d 65 (1996)
Ex parte HOLLAND MANUFACTURING COMPANY, a corporation, d/b/a Holland Crane Service.
(Re HOLLAND MANUFACTURING COMPANY, INC. v. ALABAMA POWER COMPANY).
1950133.
Supreme Court of Alabama.
September 13, 1996.
Rehearing Denied November 22, 1996.
Wade H. Baxley of Ramsey, Baxley, McDougle & Collier, Dothan, for Petitioner.
Donald R. Jones, Jr., and Cynthia Holland Torbert of Balch & Bingham, Montgomery; and Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for Respondent.
KENNEDY, Justice.
The plaintiff, Holland Manufacturing Company, d/b/a Holland Crane Service ("Holland"), appealed from a summary judgment in favor of the defendant, Alabama Power Company. The Court of Civil Appeals affirmed. Holland Manufacturing Co. v. Alabama *66 Power Co., 689 So. 2d 62 (Ala.Civ.App. 1995). We have granted certiorari review.
A summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Lucas v. Alfa Mutual Insurance Co., 622 So. 2d 907 (Ala.1993).
Alabama Power contacted Holland about the possibility of moving a large motor at Alabama Power's Farley Nuclear Plant located near Dothan. At that time, Alabama Power, through its operating agent at the Farley Nuclear Plant, Southern Nuclear Operating Company, often used outside contractors to move large equipment. An employee at the nuclear plant told Holland employees that the motor weighed about 30,000 pounds.
Holland sent a rate schedule for its crane services to the Farley Nuclear Plant. An employee at the Farley Nuclear Plant sent Holland a "blanket purchase order," which would allow Alabama Power employees at the nuclear plant to contact Holland directly for crane services in the future. According to Holland, the employees at the nuclear plant sent the blanket purchase order agreement to Holland so that Farley Nuclear Plant employees would not have to contact Alabama Power's main office in Birmingham when they needed crane services at the plant. It is undisputed that this purchase order was never signed, that no price is set out in the order, and that no terms of the purchase order were ever discussed.
Subsequently, Holland provided crane services for Alabama Power at the Farley Nuclear Plant. Holland's crane was damaged, because the motor weighed 60,000 pounds rather than 30,000 pounds, as Holland had been told. Holland sued Alabama Power, based on the damage to its crane and other equipment.
Alabama Power contended that by providing the crane services at the nuclear plant after receiving the purchase order, Holland accepted all the terms and conditions set out in the order. One of those conditions was that Alabama Power was not liable for any damage or loss to the provider's property, including damage resulting from Alabama Power's negligence. The trial court entered a summary judgment in favor of Alabama Power, and the Court of Civil Appeals affirmed that judgment.
No contract can be formed without an offer, acceptance, consideration, and mutual assent to the terms essential to the contract. Steiger v. Huntsville City Board of Education, 653 So. 2d 975 (Ala.1995). Holland contends that there was no mutual assent and, therefore, that the unsigned blanket purchase order with the clause exempting Alabama Power from liability is unenforceable.
As to the lack of signatures on the purchase order, we note that the purpose of a signature on a contract is to show mutual assent and that unless the contract is required by statute to be in writing, it need not be signed, provided it is accepted and acted upon. Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297 (Ala.1986). Whether a writing was accepted and acted upon as a contract is a question for a jury. Id.
Holland argues that there was no mutuality of assent as to the terms and conditions in the purchase order. It contends that the mere fact that it attempted to provide the crane services does not show mutual assent to the specific terms in the purchase order.
In opposition to Alabama Power's summary judgment motion, Holland attached the purchase order. The purchase order was a nine-page document. On the last page, in very small print, are certain terms and conditions, including the clause purporting to exempt Alabama Power from liability for damage to Holland's property even if the damage was caused by Alabama Power's negligence. Holland contends that there was never any "meeting of the minds" as to the terms and conditions in the purchase order and that the purchase order was mailed to Holland without any explanation. Holland asserts that there was never any intent on its part to relieve Alabama Power from liability for a negligent act committed by Alabama Power.
*67 We note that contracts against the consequences of one's own negligence are valid and enforceable only "if `the parties knowingly, evenhandedly, and for valid consideration, intelligently enter into an agreement whereby one party agrees to indemnify against the indemnitee's own wrongs.'" Nationwide Mutual Insurance Co. v. Hall, 643 So. 2d 551 (Ala.1994) (quoting Industrial Tile, Inc. v. Stewart, 388 So. 2d 171, 175-76 (Ala. 1980)).
Holland presented substantial evidence in opposition to Alabama Power's summary judgment motion. Its evidence creates a fact question as to whether the parties formed a valid and enforceable contract. Therefore, we reverse the summary judgment and remand the cause.
REVERSED AND REMANDED.
ALMON, SHORES, HOUSTON, INGRAM, and COOK, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent.
HOOPER, Chief Justice (dissenting).
On June 29, 1994, while Holland Manufacturing Company was providing crane services for Alabama Power Company at its Farley Nuclear Plant, Holland's crane was damaged. At that time, Alabama Power, through its operating agent, Southern Nuclear Operating Company, often engaged the services of independent contractors to supply large equipment and to operate the equipment. In November 1994, Holland sued Alabama Power, alleging that Alabama Power had negligently misrepresented the weight of a pump motor that was to be moved by the crane owned by Holland and thereby had caused the crane to be damaged.
Alabama Power moved for a summary judgment, on the ground that Holland's claim was barred by specific provisions in the "blanket purchase order." These provisions exempted Alabama Power from "any loss or damage" to Holland's equipment. The trial court entered a summary judgment in favor of Alabama Power. The majority reverses, holding that there is a genuine issue of material fact as to whether the parties formed a valid and enforceable contract.
A motion for summary judgment may be granted only 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, Ala.R.Civ.P.; Pinyan v. Community Bank, 644 So. 2d 919 (Ala.1994). To defeat a defendant's properly supported motion for summary judgment, the plaintiff must present substantial evidence creating a genuine issue of material fact; "substantial evidence" is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); See Pinyan, 644 So. 2d at 921. In reviewing a summary judgment, this court must view the evidence in a light most favorable to the nonmovant. Pinyan, 644 So. 2d at 921.
Alabama Power contacted Holland about the possibility of Holland's providing crane services for Alabama Power. Holland responded favorably to the idea. Steve Holland, vice-president of Holland, stated in his affidavit that he then sent Alabama Power a rate schedule and that Rozell Harris, contract agent for Southern Nuclear, sent him a "blanket purchase order," which would allow Alabama Power employees at Farley Nuclear Plant to contact Holland directly for crane services in the future. Holland said he did not discuss any of the terms and conditions of the purchase order with Harris.
The purchase order is nine pages long. The first eight pages contain fairly large print, but the last page, entitled "Terms and Conditions," is in very small print. A sentence at the bottom of the first page reads, "By accepting and filling this order or any part thereof, the seller agrees to and shall be bound by the terms and conditions on the last page." Alabama Power contends that the last page contains a clause exempting it from any liability for damage to Holland's property, including damage caused by Alabama Power's own negligence. The record contains an illegible copy of that page. However, a clause appearing earlier in the purchase order reads:
"The basic elements of a contract are an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement." Pinyan, 644 So. 2d at 922. A contract against the consequences of one's own negligence is valid and enforceable if the agreement is entered into intelligently, knowingly, and evenhandedly and for valid consideration and if the agreement is expressed in clear and unequivocal language. Nationwide Mutual Ins. Co. v. Hall, 643 So. 2d 551 (Ala. 1994).
"[Whether] a contract [exists] is determined by reference to the reasonable meaning of the parties' external and objective manifestations of mutual assent. Conduct of one party from which the other may reasonably draw the inference of assent to an agreement is effective as acceptance." Deeco, Inc. v. 3-M Co., 435 So. 2d 1260, 1262 (Ala.1983).
Holland's actions in providing crane service to Alabama Power after receiving the blanket purchase order indicated its acceptance of the terms set out in the purchase order. The language from the purchase order clearly protects Alabama Power against liability based on damage to Holland's equipment. The parties to this contract are not naive consumers. They are businesses that understand the meaning of contract language and that can appreciate the effect of a hold harmless agreement. The summary judgment should be affirmed.
MADDOX, J., concurs. | September 13, 1996 |
7ef7520a-05ae-4114-a993-266eb99938a9 | Ex Parte Weaver | 682 So. 2d 493 | 1951331 | Alabama | Alabama Supreme Court | 682 So. 2d 493 (1996)
Ex parte Jerry Lamar WEAVER.
(In re Jerry Lamar WEAVER v. STATE).
1951331.
Supreme Court of Alabama.
September 13, 1996.
C. Robert Montgomery, Chatom, for Petitioner.
No brief filed for Respondent.
Prior report: Ala.Cr.App., 682 So. 2d 488.
BUTTS, Justice.
WRIT DENIED. NO OPINION.
HOOPER, C.J., and ALMON and INGRAM, JJ., concur.
HOUSTON, J., concurs specially, with opinion.
HOUSTON, Justice (concurring specially).
I believe in all parties' right to the peremptory challenge, and I have struggled to try to preserve that right and comply with Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The United States Supreme Court in Purkett v. Elem, ___ U.S. ___, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995), encouraged me in my hope that the peremptory challenge would survive. However, the majority of this Court refuses to allow Purkett v. Elem to control Alabama's peremptory challenge procedure. Ex parte Bruner, 681 So. 2d 173 (Ala.1996). I do not see how the peremptory challenge can permanently endure with litigants having the right to peremptorily challenge some jurors but not other jurors. Do all potential jurors not have an equal right to serve as jurors regardless of race or gender? | September 13, 1996 |
b5074fa0-0220-4d65-a95d-7b5bd2626fda | Ex Parte Norwood Hodges Motor Co., Inc. | 680 So. 2d 245 | 1930150 | Alabama | Alabama Supreme Court | 680 So. 2d 245 (1996)
Ex parte NORWOOD HODGES MOTOR COMPANY, INC.
(Re: George Iliff and Rosa Iliff v. Norwood Hodges Motor Company, Inc.).
1930150.
Supreme Court of Alabama.
July 3, 1996.
*246 Arthur F. Fite III of Merrill, Porch, Dillon & Fite, P.A., Anniston, for Petitioner.
J. Callen Sparrow of Sparrow & Lavette, Birmingham, and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for Respondent Rosa Iliff.
COOK, Justice.
The opinion of September 22, 1995, is withdrawn and the following opinion is substituted therefor.
This is a fraud case involving the sale of an automobile. We granted certiorari review to determine whether the Court of Civil Appeals erred in assessing the standard of proof required to charge the jury on a punitive damages claim. We affirm.
Rosa Iliff and her husband George Iliff sued Norwood Hodges Motor Company ("Hodges"), seeking damages for fraud, deceit, and misrepresentation. They alleged that on August 10, 1988, they had negotiated with Hodges to buy a sapphire blue 1988 Mazda 626 automobile. The Iliffs alleged that Hodges did not disclose to them that the sapphire blue Mazda 626 Rosa Iliff ultimately purchased on August 25, 1988, was not the same vehicle as to which she and her husband had negotiated 15 days earlier. The trial court dismissed George Iliff's claim against Hodges after the Iliff's had presented their case-in-chief, stating that Mr. Iliff lacked standing because Rosa alone had actually obtained the financing for the purchase of the car. She asserts that Hodges represented to her that the car she purchased was the same car the Iliffs had seen on August 10. She claims there were fewer options on the second car, but that Hodges charged her the price she had agreed to pay for the first car.
At trial, George Iliff testified that his friend Dale McCullars, who was the finance manager at Hodges, had told him about the car and had invited him to come to the dealership to see it. He said that on August 10 he and his wife tested a blue Mazda. He said that automobile was equipped with dealer-installed air conditioning (which he said Hodges salesman Mike Robertson represented as preferable to a system installed at the port of entry), a vinyl headliner, pinstriping, sporty hubcaps, and a factory-installed option on the dashboard that was later identified as a suspension-control device. Mr. Iliff said the car's odometer had approximately 28 miles on it.
Rosa Iliff obtained the financing to purchase the car. She testified that the loan process took about two weeks; she said that after when she received the check for the loan proceeds, she telephoned Hodges, on August 25, and asked whether it still had the car she had tested on August 10 and that salesman Robertson responded affirmatively. She said that in fact Hodges that date had a new Mazda, but that it was not the same car *247 she and her husband had seen on August 10. She said that it was equipped differently. Specifically, she said that its air conditioning unit had been installed at the port of entry; that it had a cloth headliner; that it had no pinstriping, sporty hubcaps, or factory installed option on the dashboard; and that it had 134 miles on its odometer.
When the Iliffs arrived to pick up the car that evening, they did not notice that the car they were picking up was not the same one they had seen on August 10. They testified that the salesman, Robertson, was in a hurry to attend his son's baseball game. They said Robertson had prepared all the paperwork for the sale and quickly moved them through the signing process. By the time the Iliffs arrived at their home, they said, they had recognized some differences.
George Iliff testified that he telephoned Hodges the next day to inquire about the differences and that, initially, Robertson insisted that the car the Iliffs had driven home was the same car they had tested on August 10. Dale McCullars later told them that the car was not the same one.
The Iliffs also introduced documentary evidence to prove that the first car had cost Hodges more than the second car and that the dates on some of the documents had been changed after Rosa Iliff had signed them.
The testimony from employees of Hodges painted a different picture. Mike Robertson testified that he told Mrs. Iliff when she telephoned on August 25 that the first car they had seen was no longer on the lot but that there was an identical car there for sale.
Al Naragon's testimony rebutted Mrs. Iliff's contention that the two cars were equipped differently. Naragon explained that an air conditioning unit installed at the port of entry was not different from one installed at the dealership, because both were Mazda factory units. Naragon further explained that the factory-installed suspensioncontrol button was available only on the "luxury sports edition" of the car and that neither the car Mrs. Iliff had tested nor the one she purchased was a luxury sports edition model. Naragon also testified that all the headliners in the Mazda 626 were cloth and that the 626 models all came with only one type of hubcap.
Franklin Stephens purchased the original car the Iliffs had tested. He testified that his car had a cloth headliner and plastic hubcaps, no pinstriping, and no factory-installed suspension option. Stephens also testified that he went back to the dealership after he had purchased the car and spoke to a couple who told him that they had negotiated to buy his car but that because Hodges had another just like it on the lot, they were going to purchase the other vehicle. Hodges's finance manager Dale McCullars testified that he saw the Iliffs talking with Stephens and comparing the two cars.
At the close of all of the evidence, the trial court granted Hodges's motion for a directed verdict regarding punitive damages, holding that the evidence of intentional fraud did not meet the "clear and convincing" standard set out in § 6-11-20(a), Ala.Code 1975. The jury was not charged on punitive damages; it returned a verdict for Iliff and awarded her nominal damages of $1.00.
The Court of Civil Appeals reversed. In its opinion, it wrote:
680 So. 2d 243, 245.
Hodges contends that the Court of Civil Appeals erred in reversing, because, Hodges says, the trial court correctly applied the "clear and convincing" standard of § 6-11-20(a). *248 The issue is best articulated thusly: when determining whether to submit an issue of punitive damages to the jury, does the trial court base its decision on whether the plaintiff has presented substantial evidence creating a disputed issue of fact, from which a jury can decide if the plaintiff has proven, by clear and convincing evidence, that the defendant consciously or deliberately engaged in fraud, or does it base its decision on whether the plaintiff presented clear and convincing evidence that the defendant so acted?
Our decision in Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909 (Ala. 1994), is dispositive of this case. There we held:
In Hines, the Hineses sought compensatory and punitive damages, alleging fraudulent misrepresentation and intentional suppression regarding the sale of a car. The trial court entered a summary judgment for the dealer, Riverside, because it determined that the Hineses had not proven misrepresentation and suppression by clear and convincing evidence. In reaching our holding, we first interpreted § 12-21-12 and § 6-11-20, Ala. Code 1975. Section 12-21-12(a) and (c) state:
(Emphasis added.)
"Gross" is defined in Black's Law Dictionary 702 (6th ed.1990) as "not to be excused," "flagrant," "shameful."
Justice Almon, writing for the court in Hines, stated the following in construing the two statutes quoted above:
655 So. 2d at 925 (emphasis omitted).
Thus, in this case, the trial court should have determined whether the evidence warranted submitting the issue of punitive damages to the jury, i.e., whether there was evidence of such quality and weight that a jury of reasonable and fairminded persons could find by clear and convincing evidence that the defendant consciously or deliberately engaged in fraud; then the court should have instructed the jury that, to award punitive damages, it must find that Rosa Iliff had proven by clear and convincing evidence that Hodges consciously or deliberately defrauded her.
In addition to the foregoing, the jury could have found from the evidence that Hodges backdated at least some of the documents relating to the second carthe odometer statement, the invoice, and the application for certificate of titlegiving them the date of August 10, when the Iliffs looked at the first car, rather than August 25, when Mrs. Iliff purchased the second car. Hodges acquired the second car from another dealership on August 22 or 23. This could support a finding of intentional fraud when considered with the Iliffs' evidence that Mrs. Iliff was told on August 25 that she was buying the car the Iliffs had seen on the 10th.
Further, there was evidence from which the jury could have found that Franklin Stephens bought the first car on August 22 or 23, but that neither of the Iliffs was at Hodges's place of business on either of those days. The Iliffs presented evidence that they did not go to Hodges's place of business between August 10 and August 25, and Stephens testified that he was not there after the 23d. Thus, the couple who Stephens says he saw may not have been the Iliffs. Stephens did not testify at trial, but only by deposition, because by the trial date he had moved to another state; thus, he was not present at trial to identify the Iliffs as the couple he had seen.
By comparison of the invoices, the Iliffs presented evidence that the first car cost Hodges $700 more than the second one, but Mrs. Iliff paid Hodges the same amount for the second car as the Iliffs had been quoted for the first one. The circuit judge, in directing a verdict against the claim for punitive damages, said: "I just don't think there is any evidence of intent to injure or clear and convincing evidence of that." The Iliffs' attorney responded by arguing that the "intent to injure" language comes from the definition of malice; see § 6-11-20(b)(2). The Iliffs did not allege malice, but only fraud. The § 6-11-20(b)(1) definition of "fraud" requires *250 "the intention on the part of the defendant of thereby depriving a person or entity of property or legal rights or otherwise causing injury." (Emphasis added.) A jury could find that Hodges switched the cars and concealed the switch with the intent of depriving Mrs. Iliff of the benefit of any lower purchase price they might have negotiated because of the $700 lower price Hodges had paid for the second car.
After reviewing the evidence presented at the trial, we conclude that there was sufficient evidence to support a finding, by clear and convincing evidence, that Hodges consciously and deliberately defrauded Rosa Iliff in the sale of the Mazda 626 and that the jury could have believed the fraud was malicious, oppressive, or gross. Thus, the trial court should have allowed the jury to consider the punitive damages claim.
The judgment of the Court of Civil Appeals is affirmed.
OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
HOOPER, C.J., and SHORES, KENNEDY, INGRAM, and BUTTS, JJ., concur.
HOUSTON, J., concurs in the result.
MADDOX, J., dissents.
HOUSTON, Justice (concurring in the result).
I dissented on original submission, stating that, in my judgment, the evidence was not "clear and convincing," as defined in Ala. Code 1975, § 6-11-20(b)(4), with respect to the fraud claims. However, after further examining the record and the briefs, and after indulging all reasonable inferences in favor of the plaintiff, I have concluded that the evidence was sufficient to submit the punitive damages claim to the jury. The jury could have awarded punitive damages based on a finding that the defendant had intentionally defrauded the plaintiff by selling her a different and less expensive automobile than the one for which she had originally negotiated, without informing her of the substitution of the automobile and without renegotiating the price that she had originally agreed upon. For this reason, I concur to affirm the judgment of the Court of Civil Appeals.
However, I believe that this Court, in Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909 (Ala.1994) (in which I did not participate), misinterpreted §§ 12-21-12 and 6-11-20. As I read Hines, a trial court, when presented with either a motion for a summary judgment or a motion for a directed verdict with respect to a plaintiff's claim for punitive damages, cannot look for guidance to the substantive evidentiary standard of proof set out by the legislature in § 6-11-20. This Court stated in Hines:
655 So. 2d at 924-26. (Emphasis in Hines.)
The standards for reviewing rulings on summary judgment motions and for reviewing rulings on directed verdict motions are essentially the same. The purpose of both motions is to test the sufficiency of the evidence, to determine if any real issue exists. Both a summary judgment and a directed verdict are proper where there is a complete absence of proof on a material issue or where there are no disputed questions of fact on which reasonable people could differ. See Cook v. Trinity Universal of Kansas, 584 So. 2d 813 (Ala.1991); see also Donald v. City National Bank of Dothan, 295 Ala. 320, 323, 329 So. 2d 92, 94 (1976), wherein Justice Shores, writing for this Court, noted:
It appears to me that the rule enunciated in Hines completely emasculates Rules 50 and 56, Ala.R.Civ.P., insofar as they were designed to ferret out meritless claims for punitive damages. In my view, it was certainly not within the legislature's contemplation in enacting § 6-11-20 that a claim for punitive damages could be submitted to the jury on less than clear and convincing evidence, as defined in § 6-11-20(b)(4), and that a post-verdict motion for a judgment notwithstanding the verdict would constitute the first opportunity for the trial court to consider the sufficiency of a claim for punitive damages. That the legislature did not intend such an illogical procedure is evident from the plain wording of § 12-21-12(c):
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986), the United States Supreme Court, interpreting Rules 50 and 56, Fed.R.Civ.P., held that "the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard *253 of proof that would apply at the trial on the merits." I think that this is what the legislature intended when it enacted § 6-11-20, and this Court, in fact, has so held. See, e.g., Big B, Inc. v. Cottingham, 634 So. 2d 999 (Ala.1993); Pitt v. Century II, Inc., 631 So. 2d 235 (Ala.1993); Coca-Cola Bottling Co. v. Stripling, 622 So. 2d 882 (Ala.1993); Berry v. Fife, 590 So. 2d 884 (Ala.1991). I assume that Hines overruled these cases (and any other cases so holding) sub silentio. In any event, I believe that the confusion created by the Hines decision is apparent even in the present case, for the majority relies on Hines to hold that "the trial court should have determined whether the evidence warranted submitting the issue of punitive damages to the jury, i.e., whether there was evidence of such quality and weight that a jury of reasonable and fair-minded persons could find by clear and convincing evidence that the defendant consciously or deliberately engaged in fraud." 680 So. 2d at 249. (Emphasis added.) Thus, the majority now recognizes that a plaintiff must come forward with clear and convincing evidence to support a punitive damages claim in order to have that claim submitted to a jury and avoid an adverse judgment as a matter of law. Therefore, the majority has sub silentio overruled the above-quoted portion of Hines. I salute this and proclaim that Hines is overruled.
For the foregoing reasons, I concur in the result only.
[1] I note at this point that damage is an essential element of a plaintiff's cause of action. If a plaintiff is able to present substantial evidence in support of his claim of, say, wantonness or fraud, he has an absolute right to have the trier of fact consider his claim for compensatory damages. However, if that plaintiff cannot present in support of his claim evidence that the trier of fact could find clear and convincing, as defined in § 6-11-20(b)(4), then his claim for punitive damages must fail, as a matter of law. The plaintiff's compensatory damages claim is unaffected. I can discern no reason for not distinguishing between compensatory and punitive damages for purposes of applying the "clear and convincing" evidence standard.
[2] Because Rules 50 and 56, Ala.R.Civ.P., serve the same purpose, albeit at different stages of the litigation, I do not read Hines as making a distinction between a summary judgment and a directed verdict insofar as the standard of proof is concerned. It would certainly make no sense to apply the substantial evidence standard to a punitive damages claim at the summary judgment stage, and then to apply the clear and convincing evidence standard to that same claim at the directed verdict stage. | July 3, 1996 |
ab6cb369-7991-4c50-914e-926de6330e97 | Bryant v. Southern Energy Homes, Inc. | 682 So. 2d 3 | 1950771 | Alabama | Alabama Supreme Court | 682 So. 2d 3 (1996)
Michael W. BRYANT
v.
SOUTHERN ENERGY HOMES, INC., and Wendell Batchlor.
1950771.
Supreme Court of Alabama.
July 12, 1996.
Rehearing Denied September 6, 1996.
*4 J. Paul Lowery, Montgomery, for Appellant.
John Martin Galese, Birmingham, for Appellees.
HOUSTON, Justice.
Michael W. Bryant appeals from a summary judgment for the defendants, Southern Energy Homes, Inc., and Wendell Batchlor, president of Southern Energy, on Bryant's claims alleging fraud, promissory fraud, and breach of an implied warranty. We affirm.
Bryant purchased a new double-wide mobile home from Hart's Mobile Home Sales of Montgomery, Alabama ("Hart's"), which Hart's had purchased from the defendant manufacturer, Southern Energy. Bryant received a manufacturer's warranty pertaining to the mobile home. The mobile home was in compliance with all applicable federal building codes and regulations when it was sold to Hart's by Southern Energy. No agent, servant, or employee of Southern Energy was involved in the sales transaction between Hart's and Bryant or had any contact with Bryant before he purchased the mobile home. Bryant admitted, in response to requests for admissions, that Batchlor did not sell the mobile home to Bryant, did not extend oral or written warranties, and did not make any false written or oral representations to Bryant concerning the mobile home.
After Bryant moved into the mobile home, he discovered certain problems with it, including water leaks and other defects. He contacted Southern Energy and was assured that the company would do "everything possible to make [him] happy and satisfied." Thereafter, Southern Energy sent a representative and workers to repair the mobile home. Not all of the repairs were made. Bryant again contacted Southern Energy, which assured him that it would do "everything that would make [him] happy and satisfied about these problems." More repairs were made, but according to Bryant, Southern Energy repaired only a "fraction of the multiple problems which existed." The repairman promised to return and complete the repairs, and an executive officer of Southern Energy inspected the mobile home and advised Bryant "that something should and would be done to alleviate this problem."
Bryant filed this action before the repairs were completed.
The uncontroverted evidence is that no agent, servant, or employee of Southern Energy had any contact with Bryant before he purchased the mobile home and that Batchlor made no false representations to Bryant, either orally or in writing, concerning the mobile home. Therefore, there is no evidence that either defendant made a false representation to Bryant before Bryant purchased the mobile home; a false representation is an essential element of fraudulent misrepresentation under Alabama law. Voyager Guaranty Ins. Co. v. Brown, 631 So. 2d 848 (Ala.1993); Hall v. Gaines, 613 So. 2d 370 (Ala.1993). Bryant contends that count one of his complaint states a cause of action for implied misrepresentation, relying on the following dicta in Mathis v. Jim Skinner Ford, Inc., 361 So. 2d 113, 115 (Ala.1978):
In discussing the "reasonable expectations" rule set forth in Mathis v. Jim Skinner *5 Ford, Justice Shores, writing for a division of this Court in Jewell v. Seaboard Industrial, Inc., 667 So. 2d 653, 659 (Ala.1995) (a case remarkably similar to this case), wrote:
Bryant amended count one to assert promissory fraud as an alternative claim, based upon Southern Energy's promises to repair defects in his mobile home to his satisfaction. To recover on this cause of action, Bryant had to present substantial evidence from which the factfinder could infer that when Southern Energy made the promises, it had no intention of carrying out the promised act and had an intent to deceive. Pinyan v. Community Bank, 644 So. 2d 919 (Ala.1994); P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928 (Ala.1985). "Although Southern Energy may not have provided the paradigm of good service," Jewell, 667 So. 2d at 659, Bryant presented no substantial evidence that Southern Energy harbored an intent not to repair the mobile home or otherwise to injure or deceive Bryant. The mere fact that the promisor failed to perform the promised act is insufficient by itself to prove fraudulent intent for purposes of a promissory fraud claim. Sealing Equipment Products Co. v. Velarde, 644 So. 2d 904 (Ala.1994).
Count two of the complaint asserts a breach of the implied warranty of fitness for a particular purpose. Ala. Code 1975, § 7-2-315. Under Alabama law, the implied warranty of fitness for a particular purpose does not apply to Southern Energy, who was the manufacturer, not the seller, of the mobile home. Section 7-2-315 provides:
This provides no cause of action against the manufacturer for direct economic loss, unless there is privity of contract between the manufacturer and the purchaser. Rhodes v. General Motors Corp., 621 So. 2d 945 (Ala.1993); Wellcraft Marine v. Zarzour, 577 So. 2d 414 (Ala.1990). The undisputed evidence before the trial court when it entered the summary judgment indicated that Southern Energy was not in privity of contract with Bryant.
AFFIRMED.
HOOPER, C.J., and ALMON, INGRAM, and BUTTS, JJ., concur. | July 12, 1996 |
293d656f-fc50-49d4-bff0-06082fc9cb90 | Talladega City Bd. of Educ. v. Yancy | 682 So. 2d 33 | 1940131, 1940226 | Alabama | Alabama Supreme Court | 682 So. 2d 33 (1996)
TALLADEGA CITY BOARD OF EDUCATION
v.
Jerry G. YANCY.
Jerry G. YANCY
v.
TALLADEGA CITY BOARD OF EDUCATION.
1940131, 1940226.
Supreme Court of Alabama.
July 12, 1996.
*34 Ralph D. Gaines, Jr. and Mark A. Rasco of Gaines, Gaines & Rasco, P.C., Talladega, for Talladega City Board of Education.
Barry N. McCrary, Talladega, for Jerry G. Yancy.
David R. Boyd and Dorman Walker of Balch & Bingham, Montgomery, for amicus curiae Alabama Association of School Boards.
COOK, Justice.
The opinion of April 12, 1996, is withdrawn and the following opinion is substituted therefor.
The Talladega City Board of Education ("the Board") and Jerry Yancy appeal and cross appeal, respectively, from a judgment awarding Yancy $11,892.68 in Yancy's action against the Board alleging wrongful termination of employment. We affirm.
The evidence would support the following statement of the facts. In the summer of 1991, Yancy, a certified teacher with approximately 10 years' experience at secondary educational institutions, sought employment with a number of Alabama school systems, including the Barbour County, Houston County, and City of Talladega systems. With regard to the City of Talladega system, he telephoned Rick Armstrong, who was the head football coach at Talladega High School. As a result of their telephone conversation, Yancy and Armstrong met in August at the Alabama High School Athletic Association's "annual coaches' convention." Subsequently, Yancy telephoned Charles Kearley, the Talladega High School principal, and scheduled an interview with him.
During the interview, Kearley told Yancy that the Talladega City Board of Education was scheduled to meet that dayAugust 15, 1991and asked whether Yancy had already completed application forms and submitted them to the Board. Yancy said that he had not yet done so. Immediately after the interview, Yancy completed and submitted formal application materials.
Three days later, Armstrong telephoned Yancy and told him: "You got the job over here." More specifically, Armstrong told Yancy that he was relaying this message from Kearley and that Kearley was merely relaying the message from Dr. Edison Barney, superintendent of the Talladega City Board of Education. Also included in this message were instructions to Yancy to report to Talladega High School the next morning to participate in a "teachers' institute day."[1]
Present at the teachers' institute meeting were Dr. Barney, the school principals, "all the teachers in the ... city system," and a member of the Board. To those attending the meeting, Kearley introduced Yancy, who stood before the attendees while Kearley described *35 him to the group "as the new driver's education teacher and coach." Later that day, Dr. Barney and Yancy formally met. Yancy described the initial meeting as follows:
Also that day, Yancy was assigned a "homeroom" and received a set of keys and a "roll book."
Regular classes began the next day, Tuesday, August 20, and on that day Yancy reported for work. While Yancy was teaching school that day, his wife received telephone calls at home from the superintendents of the Barbour County and Houston County school systems, inquiring whether Yancy was still available for a teaching position. To both superintendents, his wife replied that he had accepted employment with the City of Talladega system, at Talladega High School.
Meanwhile, on the afternoon of August 19 or the morning of August 20, the following events occurred, according to Kearley's testimony:
Midway through Friday morning of that week, Kearley met with Yancy and told him that his position had been eliminated. Yancy then returned his keys and roll book, and the school enlisted a substitute teacher to handle his classes for the rest of the day.
Approximately three months later, Yancy obtained a teaching position in the Choctaw County school system. However, the three-month salary interruption caused the Yancys considerable financial difficulty, and, on February 21, 1992, Yancy sued the Talladega City Board of Education. He alleged that the Board had terminated his employment contrary to the provisions of the Teacher Tenure Act, Ala.Code 1975, §§ 16-24-1 to -13, and he sought a judgment (1) reinstating him with back pay, or, in the alternative, (2) awarding him $33,500, the amount of his anticipated annual salary, plus interest, attorney fees, and costs. Following a nonjury trial, the Talladega County Circuit Court citing the doctrine of equitable estoppel awarded Yancy $10,177.80, plus $1,714.88 interest.
In Case No. 1940131, the Board appeals the judgment in favor of Yancy. In Case No. 1940226, Yancy cross appeals, contesting the amount of the award.[2] We shall address the cases in that order.
The Board contends that it never employed Yancy and, therefore, that he could have no valid claim against it for wrongful termination. In support of this argument, it quotes Ala.Code 1975, § 16-12-16, which provides in pertinent part:
(Emphasis added.) The Board states: "It was undisputed at trial that at no time was Yancy nominated to the City Board in writing or otherwise for employment." Brief for Appellant, Talladega City Board of Education, at 19 (emphasis added). The Board also contends that it "never appointed Yancy for employment." Id. Because these two statutory provisions were not met, the Board *36 insists, its actions and those of the superintendent could not form the basis of an enforceable employment contract.
Yancy argues that the facts of this case warrant the application of the doctrine of equitable estoppel. More specifically, he contends, the Board should be "estopped from asserting the failure of the Superintendent to nominate [Yancy formally] for the position." Brief of Appellee, at 30.
This Court discussed the doctrine of equitable estoppel in Mazer v. Jackson Insurance Agency, 340 So. 2d 770 (Ala.1976), stating:
"Id., quoting 21 C.J.S. § 120, pp. 1117-18.
340 So. 2d at 772-73 (some emphasis omitted).
Although the doctrine of equitable estoppel is only infrequently applied against a municipality or other governmental entity, Marsh v. Birmingham Board of Education, 349 So. 2d 34, 36 (Ala.1977), it will "apply against a municipal corporation when justice and fair play demand it." City of Guntersville v. Alred, 495 So. 2d 566, 568 (Ala.1986). See Ex parte Mathers, 541 So. 2d 1110 (Ala. 1989); Alford v. City of Gadsden, 349 So. 2d 1132 (Ala.1977); City of Montgomery v. Weldon, 280 Ala. 463, 195 So. 2d 110 (1967); Brown v. Tuskegee Light & Power Co., 232 *37 Ala. 361, 168 So. 159 (1936); see also Kohen v. Board of School Commissioners of Mobile County, 510 So. 2d 216 (Ala.1987); Ex parte Four Seasons, Ltd., 450 So. 2d 110 (Ala.1984). In other words, "`[t]he defense of equitable estoppel may be asserted against a municipal corporation when the character of the action and the facts and circumstances are such that justice and equity demand that the corporation should be estopped.' Dillon on Municipal Corporations (4th Ed.) 675." Brown, 232 Ala. at 367, 168 So. at 165. The application of the doctrine to governmental entities is in accord with the principle that "`"[t]he state, in all its contracts and dealings with individuals, must be adjudged and abide by the rules which govern in determining the rights of private citizens contracting and dealing with each other."`" 232 Ala. at 367, 168 So. at 165 (emphasis added).
Indeed, this Court recognizes only two specific instances in which a municipality cannot be estopped. The first instance is one in which the municipality "question[s] the legality of a contract into which it had no authority to enter." Alford v. City of Gadsden, 349 So. 2d 1132, 1135 (Ala.1977) (emphasis added). The second instance is one in which the municipality seeks to avoid doing "that which it has no authority to do." Id. (emphasis added); see also City of Guntersville v. Alred, 495 So. 2d 566, 568 (Ala.1986). The sine qua non of the inapplicability of the estoppel doctrine in both instances is the absence of general authority in the municipality to do that which would result from the application of the doctrine. Thus, where it has the authority to enter a particular contract, "a city can be estopped to deny a contract [even one] into which it did not legally enter." 495 So. 2d at 568 (emphasis added).
City of Guntersville illustrates this principle. In that case, Robert Hembree, as mayor of the City of Guntersville, executed an agreement with A.M. Alred, Jr., and others, for the 25-year lease of real estate owned by the City of Guntersville. 495 So. 2d at 567. The lease was executed after negotiations and discussions regarding the agreement in a series of city council meetings, but without the adoption of a city ordinance authorizing the lease, as required by Ala.Code 1975, § 11-47-21. 495 So. 2d at 567. Section 11-47-21 provides in pertinent part:
(Emphasis added.)
Several years later, after Alred had "expended substantial sums of money to obtain the property and [had made] improvements on it," a dispute arose over the terms of the lease. 495 So. 2d at 567. The City of Guntersville sued Alred, seeking a judgment declaring the lease invalid on the ground that the transaction had not been authorized by an ordinance. The trial court held that the City of Guntersville was estopped to deny the validity of the agreement. Id. The City of Guntersville appealed, contending that estoppel should not apply "because [it] did not have the authority to enter into a lease ... and, therefore, ... [that] the lease should be held void ab initio." Id.
This Court rejected that contention and affirmed the judgment of the trial court. It noted that § 11-47-21 provided municipalities general authority to lease property. 495 So. 2d at 568. Citing Alford, it held that where the City of Guntersville had entered into a contract pursuant to general statutory authority, the failure to satisfy the formal adoption requirement of § 11-47-21 did not prevent the application of the doctrine of estoppel to the City of Guntersville's defense, namely, that the contract had not been legally executed.
The Board says there are two unfulfilled conditions precedent to the establishment of an enforceable employment contract: (1) Dr. Barney's submitting to the Board a written nomination of Yancy, and (2) some affirmative action on the nomination by the Board. The Board clearly possessed the statutory authority to employ Yancy. See § 16-12-16, Ala.Code 1975, supra; see also § 16-11-9 ("city board of education is ... vested with *38 all the powers necessary or proper for the administration and management of the free public schools within such city"); § 16-11-17 ("city board of education shall fix the salaries of all employees and may suspend or dismiss any principal or teacher or supervisor ... so appointed on the written recommendation of the city superintendent of schools"). Thus, if the elements of the doctrine of equitable estoppel are satisfied by the facts in this case, the two missing requirements on which the Board relies do not preclude its application.
Applying the six elements of estoppel set forth above, we conclude that the Boardby itself and through its superintendent, Dr. Barneyengaged in conduct that concealed a material fact and that was calculated to induce Yancy to change his position in reliance on the facts as he mistakenly thought them to be. We also conclude that the evidence supports the finding that Yancy, in reliance on the Board's conduct, did change his position, to his detriment.
The Board's most significant conduct occurred on August 19, 1991, during, and after, the teachers' institute meeting. A Board member was present at that meeting when Kearley publicly introduced Yancy as "the new driver's education teacher and coach." From all that appears of record, the introduction elicited nothing from that Board member, or from Dr. Barney, who was also present, that Yancy could construe as an objection to Kearley's statements. The Board member's silence at Yancy's introductionwhich reasonably could be construed as an offer of employmentcan best be characterized as acquiescence or ratification. This characterization is particularly significant in view of the fact that the statutory scheme does not require the Board to solemnize its employment decisions in any particular or formal manner. Moreover, the record is devoid of evidence that the Board member present at the meeting was present in any capacity other than as an agent or representative of the Board, or that the Board took any steps calculated to indicate its nonacquiescence within a reasonable time after the introduction. We disagree, therefore, with the Board's contention that it "never appointed Yancy for employment." Brief for Appellant, Talladega City Board of Education, at 19. The "material fact" concealed as of the time Yancy was introduced as "the new driver's education teacher and coach"without a contemporaneous or timely objection by anyone on the Boardwas that Dr. Barney had not submitted a written recommendation.
Equally misleading was Dr. Barney's conduct after the meeting, when he told Yancy: "I'm glad you are here. You are new and I am new. We can start together. Welcome to Talladega High School." Dr. Barney's statements served to reinforce the reasonable inference Yancy could have already drawnthat Dr. Barney had satisfied all the formalities for which he was responsible. Thus, we hold that the Board is estopped to assertas a condition precedent to the validity of Yancy's contract, which it had the authority to execute and the opportunity to disavow while other employment opportunities were still available to YancyDr. Barney's compliance with § 16-12-16.[3] The evidence indicates that while the Board was leading Yancy to think all formalities had been complied with, the Board, and (as between these parties) only the Board, knew that the formalities had not been complied with. The doctrine of equitable estoppel is, therefore, applicable in this case.
Yancy contends that the trial court erred in awarding him only $11,892.68. That was the amount (with interest) that would have accrued to Yancy under his contract with the City of Talladega system from the time he left Talladega High School until he began working for the Choctaw County school system. Yancy contends that in so limiting the award, the trial court "applied a form of the doctrine of mitigation of damages." Brief of the Appellee, at 31. It erred in applying this doctrine, Yancy argues, because, *39 he argues: "An Alabama public school teacher who has been wrongfully terminated has the right to be reinstated from the date of his wrongful termination, with full back pay and all benefits denied him as a result of his wrongful termination." Id.
In support of this argument, he cites the following three cases: Barger v. Jefferson County Board of Education, 372 So. 2d 307 (Ala.1979); Madison County Board of Education v. Wigley, 288 Ala. 202, 259 So. 2d 233 (1972); and Debrow v. Alabama State Tenure Comm'n, 474 So. 2d 99 (Ala.Civ.App. 1984), writ quashed, 474 So. 2d 101 (Ala.1985). To be sure, the Barger Court stated:
372 So. 2d at 309. This Court also recognizes, however, that "[t]he Alabama Legislature, by enacting the Teacher Tenure Law, has created two classes of teachers in the public schools of this state, those [who] have a continuing service status (tenured teachers) and those [who] do not ... (probationary or nontenured teachers)." Foster v. Blount County Board of Education, 340 So. 2d 751, 752 (Ala.1976) (emphasis added). "Through the passage of [the tenure laws] the legislature intended to provide tenured teachers with a measure of security and permanence in their employment." Ex parte Jackson, 625 So. 2d 425, 428-29 (Ala.1992) (emphasis added). Otherwise stated, the obvious intent of the legislature in creating this two-tiered system was to deny the nontenured teacher "the full panoply of rights enjoyed by the tenured teacher." Ex parte Hayes, 405 So. 2d 366, 371 (Ala.1981).
Barger and Wigley both involved wrongful termination actions by tenured teachers, and Debrow involved no issue of mitigation of damages. Consequently, those cases do not support Yancy's argument that the Teacher Tenure Act has abrogated the traditional contract principle of mitigation of damages. In short, Yancy has cited no case in which this Court has extended the rule expressed in Barger and Wigley to nontenured teachers, and we decline to do so in this case.
Yancy has shown no error, therefore, in the court's awarding damages based only on the period during which he was unemployed after leaving Talladega High School.
The judgment is affirmed, both as to the appeal and as to the cross appeal.[4]
1940131 OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
1940226 OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
HOOPER, C.J., and SHORES, HOUSTON, and BUTTS, JJ., concur.
MADDOX, J., dissents.
[1] Additionally, in consequence of his anticipated employment and pursuant to instructions from Talladega High School officials or personnel, Yancy took steps to relocate his family to the Talladega area. These steps included renting a home and enrolling his two children in an area school.
[2] The Alabama Association of School Boards filed briefs as amicus curiae.
[3] Marsh v. Birmingham Board of Education, 349 So. 2d 34 (Ala.1977), and Branch v. Greene County Board of Education, 533 So. 2d 248 (Ala.Civ. App.1988), two cases on which the Board principally relies, are inapposite. Neither of those cases involved facts that could be construed as indicating the board of education's acquiescence in, or ratification of, an offer of employment.
[4] The parties and the amicus curiae advanced arguments in addition to those discussed in this opinion. We considered them and found them to be without merit. | July 12, 1996 |
7ac8075a-1fa6-4dcc-b1c6-c7647b8154c5 | Hamlin v. Norfolk Southern Ry. Co. | 686 So. 2d 1115 | 1931221, 1931292 | Alabama | Alabama Supreme Court | 686 So. 2d 1115 (1996)
Douglas K. HAMLIN, as conservator of the Estate of Cinda S. Karjala, an incapacitated person
v.
NORFOLK SOUTHERN RAILWAY COMPANY and Danny Steve Garner.
Bruce LANG and Peggy Lang
v.
SOUTHERN RAILWAY, et al.
1931221, 1931292.
Supreme Court of Alabama.
July 12, 1996.
Rehearing Denied November 22, 1996.
*1116 Douglas C. Martinson and Douglas C. Martinson II of Martinson & Beason, P.C., Huntsville, for Douglas K. Hamlin.
Garve Ivey, Jr., Salem N. Resha, Jr., and Charles E. Harrison of Wilson & King, Jasper, for Bruce Lang and Peggy Lang.
Robert C. Dillon and George A. Monk of Merrill, Porch, Dillon & Fite, P.A., Anniston, and Crawford S. McGivaren, Jr. of Cabiness, Johnston, Gardner, Dumas & O'Neal, Birmingham, for Norfolk Southern Railway Company (1931292).
Schuyler H. Richardson III, Patrick W. Richardson and Tammy L. Frazier of Bell Richardson, P.A., Huntsville, and Crawford S. McGivaren, Jr. of Cabiness, Johnston, Gardner, Dumas & O'Neal, Birmingham, for *1117 Norfolk Southern Railway Company and Danny Steve Garner (1931221).
KENNEDY, Justice.
The plaintiffs in these two cases appeal from summary judgments for defendant, Norfolk Southern Railway Company.
A summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), A.R.Civ.P. In order to defeat a properly supported motion for summary judgment, the nonmovant must present substantial evidence creating a genuine issue of material fact. § 12-21-12, Ala.Code 1975. "Substantial evidence" means "evidence of such weight and quality that fair-minded persons in exercise of impartial judgment can reasonably infer existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989).
These cases arose following automobile-train collisions at two separate railroad crossings. At one of those crossings, David Alan Lang was killed, and at the other crossing Cinda S. Karjala suffered permanent brain damage and paralysis.
It is undisputed that neither crossing had "active" warning devices, such as flashing lights, bells, or gates.[1] However, both crossings did have "passive" warning devices, such as a "crossbuck"[2] and a stop sign.[3] Additionally, there was evidence in the Lang case that some of the painted warning signs were faded from view, that vegetation had blocked some of the warnings, and that some of the passive warning signs were missing. The evidence concerning the accident involved in the Hamlin case was that there was a dense fog in the area and that Norfolk Southern knew that this area was subject to fog that blocked the passive warning signs.
Both sets of plaintiffs sued Norfolk Southern, alleging, among other things, that it had negligently and/or wantonly failed to provide and maintain adequate warning signals at either of the respective railroad crossings. Norfolk Southern successfully moved for summary judgment as to these claims, arguing that they were preempted by federal law. The plaintiffs appeal, arguing that the preemption doctrine does not apply to bar adjudication of the state tort law claims.
The United States Supreme Court in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993), examined a case similar to these two cases. Easterwood arose out of an automobile-train collision at a railroad crossing, and it involved a state tort law claim based on an alleged failure to provide adequate warning signals. Thomas Easterwood was killed when a CSX train collided with his truck. His widow contended "that CSX was negligent under Georgia law for failing to maintain adequate warning devices at the crossing." 507 U.S. at 661, 113 S. Ct. at 1736. At the crossing where Easterwood was killed, there were dual flashing lights, crossbucks, advance yellow warning post signs, and pavement markings. Easterwood's widow claimed that CSX had negligently failed to install gate arms and that the flashing lights were positioned in such a manner that the lights were obscured by sunlight. See Easterwood v. CSX Transportation, Inc., 933 F.2d 1548 (11th Cir.1991).
The trial court entered a summary judgment for CSX; the Eleventh Circuit Court of Appeals affirmed in part and reversed in *1118 part. The Supreme Court granted certiorari review to address the preemptive effect of the Federal Railroad Safety Act ("FRSA") on negligence claims against railroads.
The purpose of FRSA is "to promote safety in all areas of railroad operations and to reduce railroad-related accidents." 45 U.S.C. § 421. FRSA mandates that the Secretary of Transportation study safety problems posed by railroad crossings and develop solutions for those problems. 45 U.S.C. § 431. The Secretary of Transportation is also empowered to prescribe "appropriate rules, regulations, orders, and standards for all areas of railroad safety." § 431(a). Section 434 of Title 45, part of FRSA, contains saving and pre-emption clauses; it reads as follows:
"Where a state statute conflicts with or frustrates federal law, the [state statute] must give way" to the federal law. Easterwood, 507 U.S. at 663, 113 S. Ct. at 1737. "In the interest of avoiding unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption. Thus, pre-emption will not lie unless it is `the clear and manifest purpose of Congress.'" Easterwood, 507 U.S. at 663-64, 113 S. Ct. at 1737, quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152, 91 L. Ed. 1447 (1947).
Following a report by the Secretary of Transportation concerning crossing grades, Congress responded by enacting the Highway Safety Act. The Act provides that States are entitled to federal funds to improve grade crossings. In return, the States are to "conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose." Easterwood, 507 U.S. at 663, 113 S. Ct. at 1737, quoting 23 U.S.C. § 130(d). The Federal Highway Administration ("FHWA") promulgated regulations to improve grade crossings under the FRSA and the Highway Safety Act.
The issue in Easterwood was whether the Secretary of Transportation had issued regulations covering the same subject matter as Georgia negligence law pertaining to the maintenance of grade crossings and the operation of trains at grade crossings. The Supreme Court held that the federal regulations adopted by the Secretary of Transportation preempted Easterwood's negligence action only insofar as it asserted that CSX's train was traveling at an excessive speed.
The Supreme Court discussed other federal regulations relevant to Easterwood's claim. Under 23 C.F.R. pt. 924 (1992), States receiving federal aid must establish a highway safety program identifying all types of highway hazards and guiding the State in implementing and evaluating remedial measures. In setting priorities, the States are to rank the dangers posed by grade crossings. § 924.9(a)(4). After developing a program, a State must evaluate the effectiveness and costs, § 924.13, and file yearly reports with the FHWA. § 924.15.
The Supreme Court stated that it was not prepared to find preemption on the basis of 23 C.F.R. pt. 924. Specifically, the Court stated:
Easterwood, 507 U.S. at 667-68, 113 S. Ct. at 1739-40.
Because these two appeals are concerned with whether federal statutes concerning the use of particular warning devices preempt state law, the portion of the Easterwood opinion discussing those specific statutes is the basis for our holding. The Supreme Court noted that states receiving federal funds must employ devices that conform to standards set out in the FHWA's Manual on Uniform Traffic Control Devices for Streets and Highways ("MUTCD"). 23 C.F.R. §§ 646.214(b), 655.603 (1992).
Easterwood, 507 U.S. at 666, 113 S. Ct. at 1739.
Under § 646.214(b)(3), states must employ automatic gates with flashing light signals as part of any improvement project that concerns a crossing that features one or more of the following features: 1) multiple main line tracks; 2) multiple tracks at or near the crossing that may be occupied by a train so as to obscure the movement of an approaching train; 3) high speed trains operating in areas of limited visibility; 4) high speed trains combined with a moderately high volume of traffic; 5) either a high volume of traffic, high number of train movements, substantial numbers of school buses or trucks carrying hazardous materials, unusually restricted sight distances, continuing accident occurrences, or any combination of these; or 6) where a diagnostic team made up of representatives of the parties of interest in the crossing recommends them.
When railroad crossings do not present any of the conditions set out in § 646.214(b)(3), then "the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA." § 646.214(b)(4).
The Easterwood Court held that the mandate that the States comply with the MUTCD does not cover the subject matter of the tort law of grade crossings. In Easterwood, CSX argued that 23 C.F.R. § 646.214(b)(1), along with Part VIII of the Traffic Control Systems for Railroad-Highway Grade Crossings Manual combined to create a situation where state law was preempted by federal law. The Court found this argument to be implausible. 507 U.S. at 669, 113 S. Ct. at 1740.
The Supreme Court next looked to §§ 646.214(b)(3) and (4), which, unlike the foregoing provisions, did establish requirements for the installation of particular warning devices. The Easterwood Court held that "[e]xamination of these regulations demonstrates that, when they are applicable, state tort law is pre-empted. However [CSX] has failed to establish that the regulations apply to [this case], and hence we find [Easterwood]'s grade crossing claim is not pre-empted." 507 U.S. at 670, 113 S. Ct. at 1740-41.
507 U.S. at 670-71, 113 S. Ct. at 1740-41 (emphasis added).
Where a state law conflicts with or frustrates a federal law, the state law must give way. U.S. Const., Art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981). "In the interest of avoiding unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption. Thus, pre-emption will not lie unless it is `the clear and manifest purpose of Congress.'" Easterwood, 507 U.S. at 663-64, 113 S. Ct. at 1737 (emphasis added).
In Michael v. Norfolk Southern Ry., 74 F.3d 271 (11th Cir.1996), a Norfolk Southern train collided with an automobile, killing both occupants. The evidence presented in favor of the plaintiffs (representatives of the driver and passenger) was that the car was travelling only 5 to 10 miles per hour, that it was extremely foggy, that the active warning signals had malfunctioned, and that the crossing bar did not comply with federal regulations. The trial court entered summary judgment in favor of Norfolk Southern holding that the state law claims of negligence were preempted by federal law. The Eleventh Circuit reversed.
Regarding the claims of negligent maintenance and failure to warn the public of the defective nature of the crossing, the Eleventh Circuit held that the state claims were not preempted by 23 C.F.R. § 646.214(b)(3) or (4). The court noted that those regulations deal with the design and installation of new warning devices and not the maintenance of those devices, or the failure to warn the public of defective devices. The court held that these federal regulations were not applicable to the negligent maintenance claim or the failure-to-warn claim, based on Easterwood.
Looking at the evidence submitted in support of the defendant's motion for summary judgment and viewing that evidence in a light most favorable to the plaintiffs, as we are required to do, we hold, in accordance with the Eleventh Circuit's rationale in Michael, that the plaintiffs' claims are not preempted by federal law. Therefore, we reverse and remand.
REVERSED AND REMANDED.
HOOPER, C.J., and ALMON, SHORES, INGRAM, and BUTTS, JJ., concur.
MADDOX and HOUSTON, JJ., dissent.
*1121 MADDOX, Justice (dissenting).
The ultimate question presented for review here is whether the Federal Railroad Safety Act of 1970 (FRSA), 45 U.S.C. §§ 421-447, preempts these two tort claims, which arise out of accidents at two railroad crossings at which the plaintiffs claim the warning devices were inadequate or defective.[4]
The majority holds that the preemption doctrine does not apply. Although the doctrine of federal preemption, especially of a state tort claim, is sometimes confusing and difficult to understand, I have concluded, after carefully reviewing the law of federal preemption, especially as it relates to the adequacy of warning signs or devices when the evidence shows that federal funds were used to improve safety at a particular railroad crossing, as in these cases, that the doctrine applies in these two cases and that the trial judges correctly entered a summary judgment for the defendants in each case. Consequently, I must respectfully dissent.
These cases arise out of two motor vehicle-train collisions that occurred at separate train crossings. Although the legal issue is the same in both cases, I will address the facts of each case separately.
The injured motorist, Cinda S. Karjala, was traveling on Brock Road in Madison County, at 4:00 a.m. in the morning in a patchy fog and attempting to cross a railroad intersection when her car collided with a Norfolk Southern Railway train. The plaintiff, as conservator of the estate of Ms. Karjala, who is now incapacitated, brought this action against Norfolk Southern Railway Company and its engineer, Danny Steve Garner.
The defendants filed a motion for summary judgment and in support of their motion they presented an affidavit of a witness who had been following Ms. Karjala. The witness stated, "I was watching Ms. Karjala, to see if she slowed, but her brake lights never came on and I was not able to tell that she slowed at all." (C.R. 143.) The crossing was marked with advance warning signs, pavement markings, a stop sign, and crossbucks. The defendants also filed another affidavit, executed by Dykes T. Rushing, who was employed by the Alabama State Department of Transportation as an office engineer; he stated that federal funds were used in the installation of the warning signs and pavement markings at the Brock Road crossing.[5]
The defendants moved for a summary judgment, based on the holding of the United States Supreme Court in CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993). The trial court entered a summary judgment with the following order:
(C.R. 444-46.)
The accident involved in the Lang case occurred in Oxford, Alabama, at approximately 6:00 p.m. at the intersection of Pace Street and Norfolk Southern's main line track. There were two double-faced crossbuck signs, one on each side of the track, and a red and white octagonal "STOP" sign on the south side of the track. The driver, David Alan Lang, pulled in behind another car that was stopped at the track, waiting for the train involved in this accident to pass. Mr. Lang pulled around the car that was stopped at the crossing and had proceeded across the tracks when the collision occurred; he died as a result of this collision.
As with the crossing in the Hamlin case, federal funds were also used in the installation of advance warning signs on both sides of the crossing involved in the Lang case, and no-passing zone signs were placed on both sides of the crossing, and "R X R" pavement markings were painted on both sides of the crossing. (C.R. 557-602.) Dykes T. Rushing, who had prepared an affidavit for filing in the Hamlin case, also made an affidavit in the Lang case. In his affidavit he stated that he was employed by the Alabama State Department of Transportation as an office engineer, that the Federal Highway Administration had approved and authorized the project to install passive warning devices at this particular crossing, and that federal funds were used in the project. As in the Hamlin case, the trial court entered a written order granting the defendant's motion for summary judgment:
(C.R. 649-56.)
I agree with conclusion reached by the trial judge in each case. In my opinion, the Supreme Court of the United States in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993), held that when federal funds are used in the installation of warning devices at a railroad-highway crossing, and where, as here, there was federal participation in the installation of warning devices, then a cause of action that is based on an alleged inadequate or defective safety practice is preempted.[6]
Here, the plaintiffs claim that Norfolk Southern was negligent, specifically that it improperly maintained the crossing and thereby made it hazardous. The plaintiffs argue that the doctrine of federal preemption does not apply to their tort claims, and the majority of this Court agrees with their argument, reversing the judgment entered in each case. I must respectfully disagree with the majority's resolution of this legal issue.
The Supreme Court of the United States wrote in Easterwood, 507 U.S. at 661-62, 113 S.Ct. at 1736:
Section 434 states that "[t]he Congress declares that laws, rules, regulations, orders, *1126 and standards relating to railroad safety shall be nationally uniform to the extent practicable" and that "[a] State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement."
In my opinion, the Supreme Court specifically addressed the issue presented here, whether the State tort claim was preempted, in Easterwood, holding that "for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection," and that in such instances "[t]he Secretary's regulation ... cover the subject matter of state law [including tort claims that seek] to impose an independent duty on a railroad to identify and/or repair dangerous crossings." 507 U.S. at 671, 113 S. Ct. at 1741.
The pertinent sections of the holding in Easterwood are provided below:
507 U.S. at 670-71, 113 S. Ct. at 1740-41 (emphasis added).
In view of the holding in Easterwood, I believe that the trial courts properly entered the summary judgment in each of these cases.
The majority cites Michael v. Norfolk Southern Ry., 74 F.3d 271 (11th Cir.1996), for the proposition that preemption does not apply in these cases. However, Michael dealt with a situation in which the railroad negligently installed a crossing arm that the plaintiffs alleged was shorter than those authorized by FRSA regulations. In Michael, the Eleventh Circuit held:
Michael, 74 F.3d at 273.
I realize that these cases have come to us on appeals from summary judgments: however, the operative facts seem to be admitted. I believe that the plaintiffs' claims are preempted and I agree with the decisions of both trial courts; therefore, I must respectfully dissent.
HOUSTON, J., concurs.
[1] "Active warning devices" are defined by 23 C.F.R. § 646.204(j) (1992), as "those traffic control devices activated by the approach or presence of a train, such as flashing light signals, automatic gates and similar devices, as well as manually operated devices and crossing watchmen, all of which display to motorists positive warning of the approach or presence of a train."
[2] A "crossbuck" sign is two narrow white overlapping boards in the shape of an "X." The words "RAILROAD" and "CROSSING" are written across the overlapping boards in black paint.
[3] "Passive warning devices" are defined under 23 C.F.R. § 646.204(i) as "those ... traffic control devices, including signs, markings and other devices, located at or in advance of grade crossings to indicate the presence of a crossing but which do not change aspect upon the approach or presence of a train."
[4] These cases involved two separate railroad crossings, but the legal issue presented is the same in both cases; therefore, they have been consolidated for the purpose of writing one opinion.
[5] The project as a part of which these warning devices were installed included the pavement markings, reflective yellow advance warning signs, and circular signs displaying a cross with the letters "RR" in black, and Rushing stated that "[t]he design and installation of these signs and pavement markings were approved and authorized by the Federal Highway Administration and federal funds were expended for the design and placement of these signs and pavement markings." (C.R. 128.)
[6] Hatfield v. Burlington N.R.R., 507 U.S. 1048, 113 S. Ct. 1940, 123 L. Ed. 2d 646 (1993) (remanded for further consideration in light of CSX Transp. v. Easterwood); Elrod v. Burlington N.R.R., 68 F.3d 241 (8th Cir.1995) (motorists' state law negligence claim based on failure to provide adequate warning devices at crossing was preempted); Thiele v. Norfolk & W. Ry., 68 F.3d 179 (7th Cir.1995); Hester v. CSX Transp., 61 F.3d 382 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 815, 133 L. Ed. 2d 760 (1996) (FRSA preempted state law claims based on inadequate signalization at crossing); Shots v. CSX Transp., 38 F.3d 304 (7th Cir.1994) (held that federal financial assistance in placing reflectorized crossbucks at intersection in question did not preempt state regulation of crossing safety); Armijo v. Atchison, T. & S.F. Ry., 27 F.3d 481 (10th Cir.1994) (remanded for a factual determination as to whether federal funds participated in the installation of warning devices); Williams v. Burlington N.R.R., 849 F. Supp. 682 (E.D.Ark. 1994) (material issue of fact existed as to whether diagnostic team visited the crossing site to determine proper warning signs); Hatfield v. Burlington N.R.R., 848 F. Supp. 158 (D.Kan. 1994), affirmed by, 64 F.3d 559 (10th Cir.1995) (held that fact that federal government explicitly undertook to provide funding for preliminary engineering of crossing upgrade prior to accident was sufficient to trigger federal preemption); Armstrong v. Atchison, T. & S.F. Ry., 844 F. Supp. 1152 (W.D.Tex.1994) (held that FRSA preempted plaintiff's claim against the railroad; summary judgment entered); Borden v. CSX Transp., 843 F. Supp. 1410 (M.D.Ala.1993) (negligence and wantonness claims were preempted insofar as they related to defendants' failure to provide and maintain adequate warning devices and insofar as they related to vegetation on and adjacent to railbed). | July 12, 1996 |
f95f5405-6e45-4af0-b309-638528dd605b | Ex Parte Williams | 686 So. 2d 1110 | 1950238 | Alabama | Alabama Supreme Court | 686 So. 2d 1110 (1996)
Ex parte Maurine WILLIAMS.
Re Maurine WILLIAMS
v.
THE MONEY TREE, INC.
1950238.
Supreme Court of Alabama.
July 12, 1996.
*1111 Gary D. Hooper of Hooper & Griffis, P.C., Birmingham, for Petitioner.
Charles R. Driggers and G. M. (Jack) Neal, Jr., of Sirote & Purmutt, P.C., Birmingham, for The Money Tree, Inc.
Michael L. Bell and James R. Sturdivant of Lightfoot, Franklin & White, L.L.C., Birmingham, for American Bankers Insurance Company of Florida and American Bankers Life Assurance Company.
Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for Amicus Curiae Alabama Trial Lawyers Ass'n, in support of Petitioner.
ALMON, Justice.
Maurine Williams petitions this Court for a writ of mandamus directing Judge William H. Robertson of the Barbour County Circuit Court to set aside his order of October 30, 1995, compelling arbitration of the claims presented in Ms. Williams's action against The Money Tree, Inc. Judge Robertson entered that order four days before this Court released its opinion in Allied-Bruce Terminix Companies v. Dobson, 684 So. 2d 102 (Ala.1995). As explained in that opinion, if the validity or scope of an arbitration agreement is in issue, the parties are entitled to a trial by jury on those questions. Id. Because Judge Robertson did not have the benefit of the principles set forth in that opinion, we direct that he reconsider his order compelling arbitration, in light of that opinion and this one.
For Judge Robertson's benefit, we make the following observations. Williams's complaint includes an allegation that there was "ineffective assent to the contract including the arbitration clause," because, she says, she cannot read and understand the terms of the contract. The Federal Arbitration Act states that arbitration agreements are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. In support of her allegation that she lacked the capacity to contract, Williams submitted a November 1992 evaluation of her mental health. This evaluation included a detailed account of delusions and hallucinations experienced by Williams and the results of a standardized intelligence test showing her I.Q. to be 52. She also submitted her own affidavit in which she stated that she "cannot read most of the words on any of the papers [the loan documents] and do[es] not understand anything about what they say." In Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 281, 115 S. Ct. 834, 843, 130 L. Ed. 2d 753 (1995), the United States Supreme Court said:
A contract may be avoided because of incapacity if it is shown that "the incapacity was of such a character that, at the time of execution, the person had no reasonable perception or understanding of the nature and terms of the contract." Williamson v. Matthews, 379 So. 2d 1245, 1247 (Ala.1980), citing Weaver v. Carothers, 228 Ala. 157, 160, 153 So. 201 (1934), and cited in Lloyd v. Jordan, 544 So. 2d 957 (Ala.1989). See Cancanon v. Smith Barney, Harris, Upham & Co., 805 F.2d 998 (11th Cir.1986).
*1112 Therefore, Judge Robertson should reconsider his order compelling arbitration, in light of this opinion and our opinion in Allied-Bruce Terminix, and is directed to make a return to this Court within 42 days indicating his ruling after that reconsideration.
INSTRUCTIONS ISSUED.[*]
SHORES, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and HOUSTON, J., concur in the result.
MADDOX, J., dissents.
HOUSTON, Justice (concurring in the result).
In this case, some of the preliminary "arbitrability" issues raised by Maurine Williams include claims of fraud in the inducement and the lack of mental capacity. Who decides these issues?
In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995), the United States Supreme Court unanimously held that questions regarding arbitrability are decided by courts, unless the contract very clearly grants to arbitrators the power to decide even preliminary issues of arbitrability. Although Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967), was not specifically overruled or even mentioned in First Options, the reasoning of First Options is dramatically opposed to that of Prima Paint, so Prima Paint and its progeny must give way to First Options. Apparently, the current nine Justices on the United States Supreme Court believe that Justice Hugo Black's dissent in Prima Paint, which concludes with the following sentence, is the correct understanding of the Federal Arbitration Act: "If there has never been any valid contract, then there is not now and never has been anything to arbitrate." 388 U.S. at 425, 87 S. Ct. at 1817. This is consistent with the words of 9 U.S.C. § 2: "A written provision ... to settle by arbitration ... shall be ... enforceable save upon such grounds as exist at law or in equity for the revocation of any contract."
The only reasonable interpretation of First Options and of 9 U.S.C. § 2 is that all issues of arbitrability must first be determined by the court, including the issue whether the contract very clearly grants the arbitrators the power to decide even preliminary issues of arbitrability. 514 U.S. at ___ - ___, 115 S. Ct. at 1923-25.
[*] Note from the Reporter of Decisions: On January 7, 1997, the Supreme Court, noting that it had "received a copy of Judge Robertson's order of September 4, 1996, denying defendant's motion to compel arbitration," dismissed the petition for writ of mandamus. | July 12, 1996 |
207a9283-498a-4a73-8bde-8f72be20f633 | American Legion Post No. 57 v. Leahey | 681 So. 2d 1337 | 1930990 | Alabama | Alabama Supreme Court | 681 So. 2d 1337 (1996)
AMERICAN LEGION POST NUMBER 57
v.
Regenia LEAHEY.
1930990.
Supreme Court of Alabama.
July 12, 1996.
James J. Bushnell, Jr. of Gleissner, Bowron, Bushnell & Henderson, Birmingham, Forrest S. Latta and W. Pemble DeLashmet of Pierce, Carr & Alford, P.C., Mobile, for Appellant.
Lee A. Rudolph and Earl P. Underwood, Jr. of Underwood & Rudolph, Anniston, for Appellee.
Richard S. Manley of Manley, Traeger & Perry, Demopolis, J. Mark Hart and Sally A. Broatch of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for Amicus Curiae Alabama Defense Lawyers Ass'n in support of appellant.
Andrew T. Citrin and David G. Wirtes, Jr. of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for Amicus Curiae Alabama Trial Lawyers Ass'n in support of appellee.
ALMON, Justice.
This interlocutory appeal comes from an order holding unconstitutional Ala.Code 1975, § 12-21-45, which would allow the defendant in this personal injury action to introduce evidence that the plaintiff received from a collateral source payments for her medical or hospital expenses. Regenia Leahey was injured when she slipped and fell on the premises of American Legion Post Number 57 ("American Legion"); she brought an action against American Legion, alleging that it had negligently or wantonly caused her injuries. Leahey filed a motion to declare § 12-21-45 unconstitutional, and she served a copy of the motion on the attorney general of the State of Alabama. The attorney general acknowledged *1338 service of the motion and waived further notice or participation in the action.[1] After proceedings on the motion, the circuit court entered an order granting it, and, pursuant to Rule 5, Ala. R.App. P., stated that the order involved a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal would be beneficial as provided in the rule. This Court granted American Legion's petition for permission to appeal, pursuant to Rule 5.
Against the constitutionality of § 12-21-45, Leahey argued, and the circuit court agreed, that it violates: the right to trial by jury as guaranteed by Ala. Const.1901, § 11; the right to a remedy and to access to the courts as guaranteed by § 13; the constitutional guaranties of equal protection, see §§ 1, 6, and 22, and due process, §§ 6 and 13; and the principle of separation of powers as preserved by §§ 42 and 43.
The collateral source rule has been summarized as follows:
22 Am.Jur.2d Damages § 566 (1988) (citations omitted).
This Court first articulated the collateral source rule in Long v. Kansas City, M. & B. *1339 R.R., 170 Ala. 635, 641-42, 54 So. 62, 63-64 (1910):
This Court has consistently held that collateral source evidence is inadmissible. See, e.g., Gribble v. Cox,, 349 So. 2d 1141, 1143 (Ala.1977); Carlisle v. Miller, 275 Ala. 440, 444, 155 So. 2d 689, 691 (1963); Vest v. Gay, 275 Ala. 286, 289, 154 So. 2d 297, 299-300 (1963); Sturdivant v. Crawford, 240 Ala. 383, 385, 199 So. 537, 538 (1940).
The leading treatise on the law of evidence in Alabama analyzes this rule as being analogous to the rule that evidence of a defendant's liability insurance is not admissible, a point that is significant in light of the fact that § 12-21-45 does not purport to make evidence of the defendant's insurance admissible:
C. Gamble, McElroy's Alabama Evidence, § 189.04(2) (4th ed.1991) (citations omitted).
The legislature, in 1979, eight years before it enacted § 12-21-45, enacted a statute abrogating *1340 the collateral source rule in product liability actions. That statute, now § 6-5-522, Ala.Code 1975, reads, in pertinent part:
(Emphasis added.) Thus, in the 1979 act, the legislature used language that at least gives some guidance as to the purpose for which the collateral source evidence is to be admitted.[2] Any such language is noticeably missing from § 12-21-45, the statute now being challenged. Compare Ala.Code 1975, § 6-5-545, by which the legislature, at the same time[3] it enacted the provision codified at § 12-21-45, enacted for medical malpractice actions a provision almost identical[4] to § 12-21-45, also omitting any reference to the effect of the evidence on an award of damages.
This Court has addressed § 6-5-522 once, in Hammond v. McDonough Power Equipment, Inc., 436 So. 2d 842 (Ala.1983), noting that no constitutional challenge had been made, holding that the circuit court had not misconstrued it, and remarking that any error in construction would have been harmless anyway because the jury had returned a verdict for the defendant on the question of liability:
436 So. 2d at 844. Thus, even in noting that no constitutional challenge had been made to § 6-5-522, the Court stated that that section implicated §§ 1, 6, and 22 of the Constitution, which this Court has held to guarantee the right to equal protection of the laws. See Smith v. Schulte, 671 So. 2d 1334 (Ala.1995).
This Court has addressed § 12-21-45 once, in Senn v. Alabama Gas Corp., 619 So. 2d 1320, 1325 (Ala.1993), holding that the circuit court "did not err in refusing Senn's requested jury charges on the collateral source rule," because the collateral source rule "was abrogated by Ala.Code 1975, § 12-21-45." No constitutional challenge to § 12-21-45 was raised in Senn.[5] This Court has not addressed § 6-5-545. Thus, the constitutional arguments against the legislative efforts to modify or abolish the collateral source rule are presented here for the first time.
Federal courts sitting in Alabama have addressed these statutes and, in some of the cases addressing these statutes the federal *1341 courts have addressed the question of the validity of these statutes under the United States Constitution. The federal courts have reached conflicting results. Bradford v. Bruno's, Inc., 41 F.3d 625 (11th Cir.1995); Craig v. F.W. Woolworth Co., 866 F. Supp. 1369 (N.D.Ala.1993), affirmed, 38 F.3d 573 (11th Cir.1994); Killian v. Melser, 792 F. Supp. 1217 (N.D.Ala.1992); Richards v. Michelin Tire Corp., 786 F. Supp. 964 (S.D.Ala.1992). The Court of Appeals for the Eleventh Circuit held in Bradford that § 12-21-45 provides a substantive rule of law to be applied in federal courts, thereby presumably overruling the district courts' holdings in Craig and Killian that § 12-21-45 provides only an evidentiary rule that does not apply in a federal court, although the affirmance of Craig leaves a possible conflict between the opinion of the three-judge panel in Bradford and that of the three-judge panel in Craig. Bradford expressly notes that no constitutional issue was raised, however, and characterizes as "dictum" Judge Guin's alternative holding in Craig that § 12-21-45 is unconstitutional. 41 F.3d at 626, fn. **.
Nevertheless, Judge Guin's analysis in Craig is the most pertinent writing from the federal courts on the constitutionality of § 12-21-45, and we therefore reproduce portions of it here:
866 F. Supp. at 1373.
See also Judge Acker's pointed criticism in Killian of § 12-21-45, including the following:
792 F. Supp. at 1219-21.
In light of these two lengthy and strong criticisms of § 12-21-45, the passing remark by the trial court in Richards that "it will not find Ala.Code [(1975),] §§ 6-5-522 and 12-21-45, which abolish the collateral source rule, unconstitutional," 786 F. Supp. at 966, does not carry much weight.
In Bradford, the Court of Appeals for the Eleventh Circuit overruled the holdings of both Craig and Killianthat § 12-21-45 provides a rule of procedure that is not to be applied in federal courts. The Bradford holding is based on the fact that the Eleventh Circuit "held in Southern v. Plumb Tools, a Division of O'Ames Corp., 696 F.2d 1321, 1323 (11th Cir.1983), that Alabama's common law collateral source rule was substantive law to be applied by federal courts in diversity cases." 41 F.2d at 626. The Bradford court also wrote: "[Southern] instructs us in this case because § 12-21-45, which is Alabama's statutory modification of its common law collateral source rule, is as much substantive law as was the common law rule it modified." 41 F.2d at 626. We respectfully note that the Court of Appeals does not seem to have considered the fact, so well expressed by Judges Acker and Guin, that while § 12-21-45 explicitly purports to change the law on the admissibility of collateral source evidence, it gives no guidance as *1343 to the effect that evidence is to have on the law of damages. Thus, while we agree that the collateral source rule as a whole is a rule of substantive law, we also agree with Judges Acker and Guin that the partial abrogation of it only as to admissibility of evidence affects only the procedural component of the collateral source rule, not its substantive component.
In support of her motion to have § 12-21-45 declared unconstitutional, Leahey filed a copy of a brief supporting a similar motion that had been filed in Scott v. Rheem Mfg. Co., CV92-854, Circuit Court of Baldwin County, and a copy of the circuit court's January 1994 order granting the motion in Scott. In granting Leahey's motion, the circuit court referred to the Scott v. Rheem Mfg. brief as presenting a "substantially correct interpretation of prevailing U.S. and Alabama constitutional law in regard to the instant question" and stated that, while the court was not "in total agreement with every point argued in said brief," the brief was "basically adopted by the Court by reference." Many of the authorities discussed herein are cited in the Scott v. Rheem Mfg. brief and are addressed in the briefs of the appellant and the brief of amicus curiae Alabama Trial Lawyers Association. In addition to studying the arguments in these synoptic briefs, we have studied the briefs of the appellee and the brief of amicus curiae Alabama Defense Lawyers Association, and we have independently researched the question.
Other states have enacted statutes affecting the collateral source rule, and the courts of several of those states have ruled on the constitutionality of the enactments. The statutory provisions, as well as the state constitutional provisions under which they are reviewed, vary considerably, so we may draw analogies to those cases only by paying careful attention to these differences. On this point, the briefs of the parties and the amici have been especially helpful.
In Denton v. Con-Way Southern Express, Inc., 261 Ga. 41, 402 S.E.2d 269 (1991), the Supreme Court of Georgia considered a statute that provided:
261 Ga. at 41-42, 402 S.E.2d at 269-70, fn. 1, quoting OCGA § 51-12-1(b). The court discussed the basis for the collateral source rule, referring to collateral source evidence as having an "infectiously prejudicial effect," 261 Ga. at 43, 402 S.E.2d at 270, and held that the statute violated the state constitution in two respects. First, the court held that the first sentence of Art. I, § I, Para. II, of the Georgia Constitution of 1983"Protection to person and property is the paramount duty of government and shall be impartial and complete"provides protection over and above that given by the second sentence, which guarantees equal protection of the laws. The court then held that OCGA § 51-12-1(b) violated that first sentence:
261 Ga. at 45-46, 402 S.E.2d at 272 (citation omitted; bracketed material in original).
Thus, while insisting that the constitutional provision at issue provided protection somehow greater than, or different from, the protection against deprivation of equal protection of the laws, the Supreme Court of Georgia held the Georgia statute abolishing the collateral source rule unconstitutional, based on a rationale that is difficult to distinguish from an equal protection analysis. Moreover, the court in footnote four also held that the statute violated due process:
261 Ga. at 45, 402 S.E.2d at 272, fn. 4 (citation omitted). Substitute "Alabama" for "Georgia" and "§ 12-21-45" for the Georgia citation, and this exact statement could be made in this opinion.
In Purdy v. Gulf Breeze Enterprises, Inc., 403 So. 2d 1325 (Fla.1981), the Supreme Court of Florida upheld a statute that invalidated, in actions arising from automobile collisions, not only the collateral source rule but also the subrogation rights of the plaintiff's insurer. The decision was based on the fact that the Florida legislature had enacted "no-fault" provisions designed to reduce legal actions among persons involved in automobile collisions, see 403 So. 2d at 1329. Furthermore, the court had earlier held that evidence of a defendant's liability insurance was admissible, see 403 So. 2d at 1330. Thus, Florida law on the subject is so different from Alabama's that Purdy presents little that is informative on the question before us.
The Supreme Court of Minnesota upheld a Minnesota statute allowing a defendant, after a jury has returned a verdict for the plaintiff, to file a motion for "determination of collateral sources," whereupon the court "shall reduce the award" by
Imlay v. City of Lake Crystal, 453 N.W.2d 326, 331, fn. 4 (Minn.1990), quoting Minn. Stat. § 548.36 (1986). The court addressed an equal protection argument and found the statute to be rationally related to the "legitimate purpose[s]" of "prevent[ing] double recoveries by plaintiffs," 453 N.W.2d at 331, and "reduc[ing] tort liability insurance premiums," id., at 332.
In Rudolph v. Iowa Methodist Medical Center, 293 N.W.2d 550 (Iowa 1980), the Supreme Court of Iowa, over a strong dissent, upheld a statute abrogating the collateral source rule in medical malpractice cases, overturning the trial court's holding that the statute violated the plaintiffs' rights to equal protection of the laws. We find the dissent much better reasoned in its detailed showing that the statute arbitrarily classified medical malpractice tortfeasors differently from other tortfeasors, malpractice victims differently from other plaintiffs, and malpractice plaintiffs with insurance differently from self-insured malpractice plaintiffs. The dissent quoted very persuasively from American Bank & Trust Co. v. Community Hospital of Los Gatos-Saratoga, Inc., 104 Cal. App. 3d 219, 163 Cal. Rptr. 513 (1980).[6] Because the equal protection issues pertinent to the medical malpractice statutes are not present here, we will not discuss those Iowa and California opinions in detail. We note the following pertinent point in Chief Justice Reynoldson's dissent in Rudolph:
293 N.W.2d at 564 (Reynoldson, C.J., dissenting).
Furthermore, we agree with Chief Justice Reynoldson's criticism of the majority's failure to offer an in-depth analysis:
Rudolph, 293 N.W.2d at 562 (Reynoldson, C.J., dissenting).
Abolition of the collateral source rule in medical malpractice actions has also been upheld in Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977), and Fein v. Permanente Medical Group, 38 Cal. 3d 137, 211 Cal. Rptr. 368, 695 P.2d 665, appeal dismissed, 474 U.S. 892, 106 S. Ct. 214, 88 L. Ed. 2d 215 (1985).
Abolition of the collateral source rule in actions against municipalities has been upheld by intermediate courts in Murray v. Nicol, 224 N.J.Super. 303, 540 A.2d 239 (1988), and Germantown Savings Bank v. City of Philadelphia, 98 Pa.Cmwlth. 508, 512 A.2d 756 (1986), aff'd, 517 Pa. 313, 535 A.2d 1052 (1988).
Kentucky's abolition of the collateral source rule was upheld in Edwards v. Land, 851 S.W.2d 484 (Ky.App.1992), cert. denied, 858 S.W.2d 698 (Ky.1993). However, that decision was overruled, and the court held that the Kentucky statute violated the principle of separation of powers. O'Bryan v. Hedgespeth, 892 S.W.2d 571 (Ky.1995).
Three aspects of the operation of § 12-21-45 weigh heavily against the argument that the statute is constitutional. First and foremost, § 12-21-45 declares that collateral source evidence "shall be admissible as competent evidence," but it does not declare what that evidence is competent to prove. The statute does not purport to change the law of damages or to declare what effect the jury may give to the collateral source evidence. If it is intended to give the jury the option of reducing the amount of proven medical and hospital expenses by the amount of the collateral source paymentas indeed it must be intended, if it does anything other than to declare irrelevant and unfairly prejudicial evidence to be "competent" evidence is it then intended to require the jury so to reduce its award? If so, why does it not say so? Was the legislature apprehensive that such a requirement would violate § 11? However, if the jury is not required to reduce the award by the amount of the collateral source payment, does the statute completely leave to the jury's discretion whether to award the full amount of the proven hospital and medical expenses, to award only the difference between those expenses and the plaintiff's collateral reimbursement, or to award some amount in between? If this is the intent, it seems that the legislature has given the jury unbridled discretion in the award of compensatory damages.
Under either construction of the statute (i.e., whether it provides for a required setoff or for a discretionary setoff), a grave problem arises regarding the subrogation rights of the plaintiff's subrogeeordinarily an insurer, for insurance is the most typical case in which the plaintiff will receive collateral source payments, and most insurance policies give subrogation rights to the insurer. Although the plaintiff is allowed to prove his insurer's subrogation rights and his cost in obtaining the insurance, there is no provision in the act requiringor even suggesting that the jury is to award the full medical and hospital expense to the plaintiff simply because a subrogee is entitled to recover. On the contrary, the jury is perhaps less likely to award the full amount to the plaintiff if it knows that the bulk of the award will be paid to an insurer. The jury could improperly *1346 reach such a result either because of an irrational bias against insurers or because of a rational conclusion that the insurer has contracted to pay benefits such as the expenses at issue for the consideration of the premiums paid and therefore is the party most appropriate to bear the loss.[7]
The latter point raises another significant problem: a jury will be informed under § 12-21-45 that the plaintiff is insured, but will not be informed that the defendant is insured. The very fact that the fact of the plaintiff's insurance is introduced into evidence but no mention is made of insurance for the defendant may lead the jury to assume that the defendant has none and to improperly base a verdict on that assumption.
Thus, these three pointsthe apparent attempt to change the law of evidence without expressing the effect on the law of damages, the prejudicial effect on the subrogation rights of a plaintiff's insurer, and the admission into evidence of the fact that the plaintiff is insured without a concomitant admission of evidence that the defendant is insuredpresent serious problems to the constitutionality of the statute.
The Court in Baader v. State, 201 Ala. 76, 77-78, 77 So. 370, 371-72 (1917), stated:
(Emphasis added.) This list of limitations on the legislative power to affect the right to trial by jury has been held in later cases[8] to be unduly narrow, but even within the terms of this list § 12-21-45 violates § 11. The legislative attempt to allow introduction of evidence of the plaintiff's insurance without allowing introduction of evidence of the defendant's insurance overturns the careful balance that courts have always observed, whereby neither party's insurance or indemnification is admissible, because of its tendency to bias the jury, to "lead[] away from impartiality."
The statute also violates the guaranty of equal protection, because it allows evidence of the plaintiff's insurance coverage but not of the defendant's. It denies equal protection because it serves to diminish awards to plaintiffs with insurance, even if their insurer is subrogated to the recovery, but provides no diminution in awards to wealthier plaintiffs who are self-insured. This is the point made in Denton when the Georgia Supreme Court says, "There can be no equal justice where the kind of trial [or the damages] a man gets depends on the amount of money he has." 261 Ga. at 45, 402 S.E.2d at 272. Section 12-21-45 also violates the equal protection rights of plaintiffs with injuries that require expenditures for medical or hospital treatments, as opposed to those with only property damagethe section does not make collateral source payments for damage to property admissible.
Section 6 of the Alabama Constitution has been held to guarantee due process of law in civil as well as criminal cases. Pike v. Southern Bell Tel. & Tel. Co., 263 Ala. 59, 81 So. 2d 254 (1955) (as extended on application for rehearing); Ross Neely Express, Inc. v. Alabama Dep't of Environmental Mgmt., 437 So. 2d 82 (Ala.1983). "The courts have found that this right is violated when a statute or regulation is unduly vague, unreasonable, *1347 or overbroad." Ross Neely, 437 So. 2d at 84; Friday v. Ethanol Corp., 539 So. 2d 208, 215 (Ala.1988).
We also agree with the point implied in Killian that the statute violates the due process guaranty by stating that collateral source evidence is "competent" without stating what it is competent to prove or what effect its admission will have. One approach to resolving this problem would be to hold simply that § 12-21-45 does not affect the law of damages, but only the law of evidence. Under such an approach, a court reviewing a verdict on a motion for new trial to determine whether the verdict was inadequate would simply apply the law as to special damages and set the verdict aside if the verdict was significantly below the undisputed amount of medical and hospital expenses. A jury is not free to disregard undisputed evidence of special damages and award an amount inadequate to compensate the plaintiff for injuries proximately caused by the defendant's negligence or other wrongful conduct. Thompson v. Cooper, 551 So. 2d 1030 (Ala.1989); Ex parte Patterson, 459 So. 2d 883 (Ala.1984); McCain v. Redman Homes, Inc., 387 So. 2d 809 (Ala.1980); Cocke v. Edwards, 215 Ala. 8, 108 So. 857 (1926); Roland v. Krazy Glue, Inc., 342 So. 2d 383 (Ala.Civ.App.1977). Such a construction would effectively eviscerate § 12-21-45 and worsen its confusing effect because it would decidedly make the "competent" collateral source evidence immaterial, prejudicial, and confusing to the jury. In such an application, the statute would violate the plaintiff's right under §§ 6 and 13 of the Constitution to a remedy by due process of law.
On the other hand, if the Court were to attempt to save the statute by holding that it gives the jury discretion whether to reduce its award by the amount of the collateral source recovery or some portion thereof, a due process violation would arise from a different direction: the standardless submission to the jury of a complaint for compensatory damages. This violation is made more obvious by the fact that medical and hospital damages are special damages.
Finally, if the Court were to try to save the statute by reading it to require the jury to reduce its award by the amount of the collateral source payment, except to the extent that the plaintiff is required to reimburse the collateral payor, then § 12-21-45 would still violate the due process guaranty because of its introduction of evidence that the plaintiff is insured without allowing evidence that the defendant is insured, thereby inherently undermining the fairness of the proceeding. This reading would violate not only the plaintiff's right to due process, but also the right of the plaintiff's insurer not to be deprived of its contractual subrogation rights without due process of law, because, as explained above, the lopsided introduction of insurance evidence would tend to cause the jury not to require the defendant to reimburse the plaintiff's insurer for an indemnity that the insurer has contracted to provide and for which it has received premiums.
For the foregoing reasons, the circuit court correctly held that § 12-21-45 is unconstitutional. The order declaring the statute unconstitutional is therefore affirmed.
AFFIRMED.
SHORES, KENNEDY, INGRAM, and COOK, JJ., concur.
HOOPER, C.J., and MADDOX and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
I dissent from the holding that Ala.Code 1975, § 12-21-45, violates the right to trial by jury guaranteed by the Constitution of Alabama of 1901, § 11. See Henderson v. Alabama Power Co., 627 So. 2d 878, 903-14 (Ala.1993) (Houston, J., dissenting); Ex parte Giles, 632 So. 2d 577, 587-89 (Ala.1993) (Houston, J., concurring in the result), cert. denied, ___ U.S. ___, 114 S. Ct. 2694, 129 L. Ed. 2d 825 (1994); Smith v. Schulte, 671 So. 2d 1334 (Ala.1995) (Houston, J., dissenting), cert. denied, U.S. (1996); Ex parte Jackson, 672 So. 2d 810 (Ala.1995) (Houston, J., concurring in the result); Ex parte Foshee, 246 Ala. 604, 606-07, 21 So. 2d 827 (1945); and Amendment 328, § 6.11, Constitution of Alabama of 1901.
I dissent from the holding that Ala.Code 1975, § 12-21-45, violates the "phantom" *1348 equal protection clause in the Constitution of Alabama of 1901. See Moore v. Mobile Infirmary Association, 592 So. 2d 156, 174-77 (Ala.1991) (Houston, J., concurring in the result); Pinto v. Alabama Coalition for Equity, 662 So. 2d 894 (Ala.1995) (Houston, J., concurring in the result); Smith v. Schulte, supra (Houston, J., dissenting).
The majority opinion states:
681 So. 2d at 1338.
Apparently, the majority opinion affirms on the basis that § 12-21-45 violates "the right to trial by jury as guaranteed by Ala. Const.1901, § 11" and "the constitutional guaranties of equal protection, see §§ 1, 6, and 22."
In my opinion, § 12-21-45 is not unconstitutional for any of the reasons offered by Leahey.
Section 6 of the Constitution relates to rights in criminal prosecutions ("That in all criminal prosecutions, the accused has a right to ..."). Section 12-21-45 has nothing to do with criminal prosecutions. Due process, which is guaranteed in civil trials by § 13 of the Constitution ("that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law"), guarantees a person notice,[9] a hearing according to that notice, and a judgment entered in accordance with the notice and hearing,[10]Ex parte Rice, 265 Ala. 454, 92 So. 2d 16 (1957), and restricts the legislature from making unreasonable, arbitrary, and oppressive modifications of fundamental rights. Thompson v. Wiik, Reimer & Sweet, 391 So. 2d 1016 (Ala.1980). I fail to see how § 12-21-45 violates the due process guaranty.
No remedy that Leahey had was curtailed after the injury had occurred and the right of action vested. Therefore, there was no violation of the right-to-a-remedy portion of § 13. Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939); Henley v. Rockett, 243 Ala. 172, 8 So. 2d 852 (1942).
Likewise, Ala.Code 1975, § 12-21-45, does not violate the separation of powers doctrine (§§ 42 and 43) of the Constitution of Alabama of 1901. See Ex parte Foshee, 246 Ala. 604, 606-07, 21 So. 2d 827 (1945).
Amendment 328, § 6.11, Constitution of Alabama of 1901.
In my opinion, the legislature had the power to enact § 12-21-45. Whether it was expedient or wise for the legislature to enact this statute is not the judiciary's concern. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9-10, 18 So. 2d 810, 815 (1944).
HOOPER, C.J., and MADDOX, J., concur.
[1] See Ala.Code 1975, § 6-6-227; Terry v. City of Decatur, 601 So. 2d 949 (Ala.1992); Wallace v. State, 507 So. 2d 466 (Ala.1987); Barger v. Barger, 410 So. 2d 17 (Ala.1982).
[2] Note also that for product liability actions, if the collateral source payor is subrogated to the plaintiff's recovery, § 6-5-524 renders all of the evidence on the subject inadmissible, just as under the common law collateral source rule. This provision also starkly contrasts with § 12-21-45.
[3] Section 12-21-45 derives from Act No. 87-187, Ala. Acts 1987, whereas § 6-5-545 derives from Act No. 87-189, Ala. Acts 1987.
[4] Identical except that § 12-21-45(a) begins, "In all civil actions," whereas § 6-5-545(a) begins, "In all actions," meaning all medical liability actions, to which § 6-5-545 is limited.
[5] This Court has made passing references to § 12-21-45 in Clark v. Black, 630 So. 2d 1012, (Ala.1993); Star Freight, Inc. v. Sheffield, 587 So. 2d 946, 959, fn. 7 (Ala.1991) (§ 12-21-45 "may apply" in cases filed after June 11, 1987); and Powell v. Blue Cross & Blue Shield, 581 So. 2d 772, 775, fn. 5 (Ala.1990). The Court of Civil Appeals once declined to address a constitutional challenge to § 12-21-45 because the plaintiff had not served the attorney general. Roszell v. Martin, 591 So. 2d 511, 516-17 (Ala.Civ.App. 1991).
[6] The judgment of the California Court of Appeals in American Bank & Trust Co. was affirmed, but its holding of constitutionality was overturned in American Bank & Trust Co. v. Community Hospital, 36 Cal. 3d 359, 204 Cal. Rptr. 671, 683 P.2d 670 (1984).
[7] The latter basis for a verdict omitting the subrogated amount would be improper, though perhaps rational, for several reasons: one, the insurer's calculation of the risk presumably factors in the possibility of subrogation; two, a conclusion that the plaintiff's insurer is the best party to bear the risk overlooks the fault of the defendant, which is the proper basis for assigning responsibility for the loss; and three, the jury would be basing its conclusion on the incomplete information indicating that the plaintiff is insured, without having the information indicating that the defendant is insured, as explained in the following paragraph of text.
[8] See, generally, Clark v. Container Corp. of America, Inc., 589 So. 2d 184, 198-99 (Ala.1991) (Adams, J., concurring in the result); Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala. 1991); Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995).
[9] See BMW of North America, Inc. v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), discussing "notice" as a component of due process under the United States Constitution.
[10] "[A]ll courts shall be open" (§ 13, Constitution) to assure such hearing and resolution. | July 12, 1996 |
73d7b963-5dcc-4add-b9ed-0feb63fa1e13 | Ex Parte McCorvey | 686 So. 2d 425 | 1941743 | Alabama | Alabama Supreme Court | 686 So. 2d 425 (1996)
Ex parte Nathaniel McCORVEY.
(Re Nathaniel McCorvey v. State.
1941743.
Supreme Court of Alabama.
July 12, 1996.
Edward L. D. Smith and Selma L. D. Smith of Smith and Smith, Mobile, for Petitioner.
Jeff Sessions, Atty. Gen., and John J. Park, Jr., Deputy Atty. Gen., for Respondent.
KENNEDY, Justice.
We granted the writ of certiorari in order to review the judgment of the Court of Criminal Appeals affirming the defendant's criminal conviction. That court affirmed by an unpublished memorandum, pursuant to Rule 54, Ala.R.App.P. The defendant argues that the trial court erred in permitting the State to impeach his credibility as a witness by eliciting evidence regarding his probationary status as a youthful offender.
We reverse. We adopt the reasoning of Judge Taylor, expressed in his opinion dissenting from the no-opinion affirmance. McCorvey v. State, 686 So. 2d 424 (Ala.Crim. App.1995). Judge Taylor stated:
686 So. 2d at 424.
REVERSED AND REMANDED.
HOOPER, C.J., and ALMON, SHORES, HOUSTON, and COOK, JJ., concur.
MADDOX, J., concurs specially.
BUTTS, J., dissents.
MADDOX, Justice (concurring specially).
I concur specially to point out that the majority's opinion is consistent with Rule 609(d), Alabama Rules of Evidence (effective January 1, 1996). That Rule provides: | July 12, 1996 |
6c5b61fb-52ed-4a5f-807f-b8a264869351 | Ex Parte Metropolitan Life Ins. Co. | 679 So. 2d 686 | 1941855 | Alabama | Alabama Supreme Court | 679 So. 2d 686 (1996)
Ex parte METROPOLITAN LIFE INSURANCE COMPANY.
(Re W. R. EDGEWORTH v. METROPOLITAN LIFE INSURANCE COMPANY).
1941855.
Supreme Court of Alabama.
June 28, 1996.
David A. Elliott of Burr & Forman, Birmingham, for Petitioner.
Myron K. Allenstein, Gadsden, and Mac Downs, Gadsden, for Respondent.
*687 COOK, Justice.
The only issue presented by this petition for the writ of mandamus is whether the plaintiff is entitled to a jury trial in his action against the administrator of an ERISA-regulated employee health care benefit plan.
W.R. Edgeworth, a retired employee of LTV Steel Company, is a member of the LTV Health Care Plan ("the Plan"), a self-funded employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.). MetLife is the administrator of the Plan and has discretionary authority to determine eligibility for benefits claimed under the Plan.
Edgeworth submitted claims to MetLife for expenses incurred in the care of his wife, a party "covered" under the Plan.[1] MetLife denied payment, stating that the care given to Edgeworth's wife at Wessex House, a nursing home in Gadsden, was specifically excluded by the following provision of the Plan:
The "summary plan description" of the Plan also contains a statement that the Plan does not cover confinement in a skilled nursing facility that is primarily for "custodial care." Mrs. Edgeworth suffered from Alzheimer's disease and required total custodial care (including feeding, bathing, dressing, turning in bed, motion exercise, decubitus care and prevention, and toileting) in addition to the skilled care she required for various chronic illnesses. The Plan does not define the terms "skilled care" and "custodial care."
Edgeworth requested that MetLife reconsider its decision that his claim was not covered by the Plan. At MetLife's request, Edgeworth submitted additional data to support his reasons for requesting review. MetLife reviewed the claim a second time and again determined that Edgeworth's claim was not covered by the Plan because, according to MetLife, Edgeworth's wife received primarily "custodial care," which is specifically excluded under the terms of the Plan.
Edgeworth sued MetLife, alleging 1) that MetLife had refused to pay a valid claim under the Plan (i.e., a claim for payment of benefits for his wife's care); 2) that MetLife had no valid basis for refusing Edgeworth's claim and had intentionally failed to determine whether there was a valid basis for refusing to pay; and 3) that MetLife, in violation of 29 U.S.C. § 1132(c), had failed to comply with Edgeworth's request that he be given a copy of Plan. Edgeworth claimed punitive damages in addition to the payment of benefits under the Plan, and he demanded a jury trial.
In its answer, MetLife denied any wrongdoing and asserted that Edgeworth's claims were governed by ERISA. MetLife moved to strike Edgeworth's demand for a jury trial, on the ground that, under ERISA, a jury trial is not available in litigation to determine the claim asserted by Edgeworth, which MetLife characterized as a traditional ERISA "enforcement" action.
During the pendency of MetLife's motion to strike the jury demand, Edgeworth filed a "Motion To Allow Restatement of Complaint With Minor Corrections." The "restated" complaint contained the following additions:
The trial court allowed Edgeworth to file the restatement. It denied MetLife's motion to strike the jury demand, and granted Edgeworth's jury demand.
MetLife petitions this Court for a writ of mandamus directing the Etowah Circuit Court to vacate its order denying MetLife's motion to strike Edgeworth's jury demand.[2] A writ of mandamus will issue to compel the granting of a trial by jury when the right to a jury trial is clearly shown, Ex parte Holt, 599 So. 2d 12 (Ala.1992). MetLife seeks a writ compelling the denial of a trial by jury. The only issue raised by MetLife's petition is whether Edgeworth's claims entitle him to a jury trial.
MetLife argues, based on Ex parte Gurganus, 603 So. 2d 903 (Ala.1992), that Edgeworth's complaint states an equitable claim to enforce a benefits plan governed by ERISA. Edgeworth's case, says MetLife, falls squarely within the holding in Gurganus, and, therefore, it argues, Edgeworth is not entitled to a jury trial.[3]
MetLife acknowledges this Court's recent decision in Weems v. Jefferson-Pilot Life Ins. Co., 663 So. 2d 905 (Ala.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 434, 133 L. Ed. 2d 348 (1995), but argues that Weems is not controlling here. MetLife interprets Weems as distinguishing, not overruling, Gurganus. According to MetLife, Edgeworth's action is equitable in nature and "does not involve alleged tortious activities such as those found in Weems"; therefore, it argues, Edgeworth is not entitled to a jury trial. We disagree.
We find Gurganus inapplicable to this case. Gurganus observed that "ERISA is silent as to whether a plan participant or beneficiary has a right to a jury trial under [§ 1132(a)(1)(B)]." 603 So. 2d at 904. Gurganus, however, relied on Blake v. Unionmutual Stock Life Ins. Co. of America, 906 F.2d 1525 (11th Cir.1990), and applied the reasoning the Eleventh Circuit Court of Appeals applied in Blakethat ERISA plaintiffs seek "traditionally equitable relief" and are not entitled to a trial by jury. We have now, however, departed from the holding in Blake.[4]
This Court, in Weems, supra, and in Haywood v. Russell Corp., 584 So. 2d 1291 (Ala. 1991), adopted and applied the rationale and the holding of the United States Supreme Court in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S. Ct. 478, 112 L. Ed. 2d 474 (1990). In those cases we held "that state and federal `courts are authorized to award damages, both extracontractual and even punitive, where the facts support them, ... though they are not specifically provided for in ERISA.'" Weems, 663 So. 2d at 909, quoting Haywood, 584 So. 2d at 1297 (emphasis added [in Weems]). We also held in those *689 cases that ERISA plaintiffs may be entitled to a jury trial on their claims "because the right to recover compensatory and punitive damages `leads inexorably to the right of trial by jury,' as guaranteed by U.S. Const. amend. VII." Weems, 663 So. 2d at 913, quoting Haywood, 584 So. 2d at 1298.
Edgeworth stated claims against MetLife alleging that, pursuant to the terms of the Plan, MetLife "owes" Edgeworth for expenses Edgeworth incurred caring for his wife. Edgeworth seeks only to recover those amounts that he claims are presently owed, along with punitive damages for MetLife's refusal to pay those amounts. He does not seek to enforce future payments under the terms of the Plan. We therefore determine that Edgeworth's claim is not in the nature of a claim for equitable relief, but is akin to a claim for legal relief. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959); Ex parte Twintech Industries, Inc., 558 So. 2d 923 (Ala.1990); and Evans v. Evans, 547 So. 2d 459 (Ala.1989).
Edgeworth alleged certain facts in support of his claim for punitive damages. However, we need not determine now whether those facts would support an award of punitive damages.
The trial court properly granted Edgeworth's demand for a jury trial. MetLife is not entitled to the relief it seeks in its petition.
WRIT DENIED.
ALMON, SHORES, KENNEDY, and INGRAM, JJ., concur.
HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur specially.
BUTTS, J., concurs in the result.
HOUSTON, Justice (concurring specially).
In Weems v. Jefferson-Pilot Life Insurance Co., 663 So. 2d 905 (Ala.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 434, 133 L. Ed. 2d 348 (1995), I dissented from the holding that a plaintiff had the right to a jury trial in an ERISA action. I dissented on the basis of Blake v. Unionmutual Stock Life Ins. Co., 906 F.2d 1525 (11th Cir.1990). However, because the United States Supreme Court denied certiorari review in Weems, I join the majority in denying the writ of mandamus in this case.
HOOPER, C.J., and MADDOX, J., concur.
[1] Mrs. Edgeworth is now deceased.
[2] MetLife includes the following statement in its petition:
"On July 6, 1995, the trial court granted [Edgeworth] leave to file the restatement of complaint in the same order in which it denied MetLife's motion to strike [Edgeworth's] jury demand. MetLife then removed the action to the United States District Court ... on the grounds that, by amending his complaint, [Edgeworth] had revived MetLife's right to remove the case. On July 27, 1995, [Edgeworth] filed a motion to remand the case, and after entertaining arguments from the parties, the [federal district court] remanded the action to the Circuit Court of Etowah County on August 30, 1995."
[3] Gurganus held that, although money damages may be claimed in an ERISA action (29 U.S.C. § 1132(a)(1)(B)), the plaintiffs nonetheless were "in effect ... claiming the benefits they are ... entitled to under the plan," and were merely seeking enforcement of the planan equitable action. Ex parte Gurganus, 603 So. 2d at 905 (quoting Blake v. Unionmutual Stock Life Ins. Co. of America, 906 F.2d 1525 (11th Cir.1990)).
[4] We note, also, that Gurganus "held only that an action brought pursuant to § 1132(a)(1)(B), to determine the insurer's right to cancel an ERISA-regulated plan, was equitable in nature, and, consequently, did not carry a right to a trial by jury." Weems, 663 So. 2d at 913 (emphasis added). | June 28, 1996 |
2905d097-6c6e-4fb7-b42a-d0597e1c6959 | Titan Indem. Co. v. Riley | 679 So. 2d 701 | 1940312 | Alabama | Alabama Supreme Court | 679 So. 2d 701 (1996)
TITAN INDEMNITY COMPANY
v.
John Thomas RILEY, Jr., et al.
1940312.
Supreme Court of Alabama.
July 3, 1996.
James R. Shaw and T. Kelley May for Huie, Fernambucq & Stewart, Birmingham, for Appellant.
Griffin Sikes, Jr., Montgomery, for John Thomas Riley, Jr.
*702 Truman M. Hobbs, Jr. of Copeland, Franco, Screws & Gill, P.A., Montgomery, for Jerome M. Wooten.
Charles L. Anderson of Parnell, Crum & Anderson, P.A., Montgomery, for Frank Bertarelli.
COOK, Justice.
Titan Indemnity Company ("Titan") appeals from a judgment entered in favor of John Thomas Riley, Jr., and others in a declaratory judgment action commenced by Titan to determine its liability under an insurance policy it had issued to the City of Montgomery. We affirm.
This is the second time we have addressed issues in this action. See Titan Indemnity Co. v. Riley ("Titan I"), 641 So. 2d 766 (Ala. 1994). Titan I, which was released on February 25, 1994, set forth the following:
641 So. 2d at 767 (emphasis added, footnote omitted).
In Titan I, Titan argued that it was not bound to defend the officers, because, it contended, "the acts of corruption that caused Riley's unlawful incarceration were not `occurrences' that resulted from law enforcement activities and that caused `personal injury that the insured did not expect or intend.'" Id. at 768. It insisted that "the acts were intentional wrongs that cannot give rise to a duty to defend under the policy." Id. Titan also argued for a reversal of the summary judgment on the ground that "the actions alleged in the complaint did not arise from law enforcement activities within the scope of the ... officers' duties for the City of Montgomery." Brief of Appellee John Thomas Riley, Jr., App. B., at 6 (emphasis added).
In deciding whether Titan was obligated to defend the officers, this Court set forth and construed the following provisions of the Titan insurance policy:
Id. at 768 (emphasis added in Titan I).[1]
This Court affirmed the judgment, holding that the policy provided coverage for the acts forming the basis of Riley's § 1983 action in the federal courts. Specifically, we explained:
641 So. 2d at 768 (emphasis added).
After Titan I was released, the United States District Court for the Middle District of Alabama entered a judgment in favor of Bertarelli, Davis, Jones, and Wooten as to the § 1983 claims, and in favor of Bertarelli, Davis, and Jones as to Riley's state-law claims. It denied Wooten's summary judgment motion as to the state-law claims. Subsequently, the court entered a judgment in favor of the City of Montgomery, Bodine, Mayor Folmar, and Chief Wilson as to all claims against them. From those judgments, which were certified as final judgments pursuant to Fed.R.Civ.P. 54(b), Riley appealed to the United States Court of Appeals for the Eleventh Circuit. (So far as the record here indicates, that appeal is still pending in that court.) Wooten sought "permission to take an interlocutory appeal" of the denial of his summary judgment motion, but the Eleventh Circuit denied it.
Meanwhile, on July 27, 1994, the Montgomery County Circuit Court entered an order in the declaratory action, holding that the policy issued by Titan requires it to indemnify the defendants Bertarelli, Davis, Wooten, and Jones if Riley's action against them in the federal courts is ultimately successful. The order stated in pertinent part:
That order was certified as a final judgment pursuant to Ala.R.Civ.P. 54(b), and Titan appealed.
Titan bases its arguments for reversal of this judgment on two grounds. First, it contends that the defendant police officers are not "insureds" within the meaning of that term in the policy, because, it insists, "the acts of the defendant officers as alleged in the federal complaint did not arise from law enforcement activities within the scope of the officers' duties for the City of Montgomery." Riley, however, arguing for affirmance of the judgment, insists that the dispositive question of Titan's duty to its insureds under the policy was determined adversely to it in Titan I, and that Titan I, therefore, establishes the law of this case.
Second, Titan contends that "the trial court should have deferred a final ruling until the adjudication of the underlying federal lawsuit." Indeed, after the briefs were filed in this case, Titan moved this Court to "stay[] the appeal of this action until the final resolution of the underlying federal action." That motion is still before us.
Third, it argues that regardless of the conclusions reached by this Court in Titan I, and regardless of the outcome of the federal action, "a contractual obligation to indemnify an insured for intentional wrongs is void as against the public policy of the State of Alabama." We shall address Titan's first two arguments in Part I and shall address the final argument in Part II.
"An interlocutory appeal may settle a particular issue of the proceedings, so that the decision becomes the law of the case for the pendency of the litigation." Parsons Steel, Inc. v. Beasley, 600 So. 2d 248, 252 *705 (Ala.1992). Regarding this principle, this Court has given the following explanations: From Blumberg v. Touche Ross & Co., 514 So. 2d 922, 924 (Ala.1987):
From Gray v. Reynolds, 553 So. 2d 79, 81 (Ala.1989):
Titan insists that Titan I is not the law of this case, because, it argues, we are here presented with an issue not addressed or confronted in Titan I, namely, whether the defendant officers are "insureds" within the meaning of the policy language. Specifically, it argues:
Brief of Appellant, at 58 ("Insured" emphasized in the original; other emphasis added.) Similarly, it contends, the judgment under review in Titan I held only that Titan was obligated to defend the officers, not, as was held by the judgment under review here, that it is obligated to indemnify them.
We are unpersuaded by these argumentsthey are essentially restatements of the ones Titan relied on in the previous appeal. There, we concluded that "the acts of corruption that caused Riley's unlawful incarceration were ... `occurrences' that resulted from law enforcement activities" within the meaning of the terms used in the policy. 641 So. 2d at 768. Indeed, the only legal basis for the holding that Titan was obligated to defend the officers was that the conduct committed by the officers was conduct covered under the policy.
Given our conclusion in that case, it would be inconsistent for us to hold in this case, that the officers, who committed the conduct, were not covered. Otherwise stated, if the conduct giving rise to this dispute was covered as to Titan's duty to defend, that same conduct also provides the basis for imposing on Titan a duty to indemnify. We conclude, therefore, that Titan I establishes the law of this case as to Titan's liability for indemnification under the policy.
As to the motion to stay this appeal, the effect of Titan I on this present case does not turn on the outcome of the collateral federal action. Any decision the federal courts might eventually reach as to whether the defendants are liable to Riley will not moot the question previously decided in Titan I regarding the applicability of an insurance policy. Moreover, regardless of the outcome of the appeal in the Eleventh Circuit, the action against the defendant Wooten is, apparently, proceeding apace in the federal district court. For these reasons, Titan's motion to stay the appeal is denied.
In support of the proposition that Alabama law and public policy prohibit indemnity under these facts, Titan cites Armstrong v. Security Insurance Group, 292 Ala. 27, 288 So. 2d 134 (1973), Pruet v. Dugger-Holmes & Associates, 276 Ala. 403, 162 So. 2d 613 (1964); Fidelity-Phenix Fire Insurance Co. v. Murphy, 226 Ala. 226, 146 So. 387 (1933). To be sure, this Court stated in Murphy:
226 Ala. at 230-31, 146 So. at 390. Armstrong and Pruet also refer to this rule.
Those cases, however, are not controlling. Pruet did not involve an insurance policy; Armstrong involved an insurance policy, but one that expressly and clearly excluded coverage for intentional conduct; and Murphy involved a "first-party" insurance contract, that is, a policy providing for the payment of proceeds to the insured. More specifically, Murphy involved allegations that the insured, who owned a ship, had conspired "with others ... to sink and ... destroy the vessel and cargo for the purpose of collecting the insurance upon the ship and also for the purpose of defrauding [the insurer] in causing it to repay [the insured] any sum paid by him to the owner of the cargo." 226 Ala. at 229, 146 So. at 388. In short, Titan has not cited a case in which this Court has held that an insurer who, as in this case, agrees___in exchange for receipt of premiums___to pay for the harm or loss suffered by a third party arising out of the intentional acts of its insured, may, nevertheless, avoid the contract on the ground of public policy.
In fact, at least one recent case suggests the contrary result. In Burnham Shoes, Inc. v. West American Insurance Co., 504 So. 2d 238 (Ala.1987), this Court expressly pretermitted discussion of "the correctness of the Fifth Circuit's conclusion [in St. Paul Ins. Cos. v. Talladega Nursing Home, 606 F.2d 631 (5th Cir.1979)] that insurance contracts in which the insurer agrees to indemnify its insured for intentional acts violate the public policy of this state." 504 So. 2d at 241 n. 1 (emphasis in original).
In Burnham Shoes, the Court of Appeals for the Eleventh Circuit certified to this Court the question: "Is an insurance provision, which otherwise would obligate the insurer to defend the insured in a lawsuit based upon intentional wrongs alleged to have been committed by the insured, void as against the public policy of the state of Alabama?" Id. at 238. Significantly, we answered that question in the negative, and, although we declined to address the public policy implications of enforcing indemnity provisions, we found no public policy impediment to enforcement of provisions requiring an insurer to defend its insured. Id. at 241. We said:
Id. (Emphasis in original.)
For these and other reasons, a number of courts have expressly held that policy provisions requiring the insurer to pay damages for injuries arising out of the intentional acts of its insured are enforceable. See, e.g., New Madrid County Reorganized School Dist. No. 1, Enlarged v. Continental Cas. Co., 904 F.2d 1236, 1242 (8th Cir.1990) ("Missouri public policy [does not prohibit] insurance coverage for an insured's intentional acts where the policy provides for such coverage"); Everglades Marina, Inc. v. American Eastern Dev. Corp., 374 So. 2d 517 (Fla. 1979) (Florida public policy permitted enforcement of an insurance contract requiring insurer to compensate boat owners for damage to boats stored in a marina, which was intentionally burned by the insured); American Home Assurance Co. v. Fish, 122 N.H. 711, 451 A.2d 358, 360 (1982) (New Hampshire "public policy sanctions rather than opposes insuring for liability arising directly against the insured from intentional torts such as false arrest, slander or [violations leading to] § 1983 actions"); Colson v. Lloyd's of London, 435 S.W.2d 42, 47 (Mo. App.1968) (it is not "against [Missouri] public policy to permit an association of law enforcement officers to insure themselves *707 against alleged wilful and intentional acts"); accord, City of Newark v. Hartford Accident & Indem. Co., 134 N.J.Super. 537, 342 A.2d 513, 518 (1975) (New Jersey public policy does not prohibit the enforcement of provisions requiring an insurer "to defend municipal policemen and pay for damages awarded against them in an action for intentional acts described in the policy," where the acts are not criminal and are not committed with "actual malice or other outrageous conduct"). We hold, therefore, that Alabama public policy does not prohibit the enforcement of a contract in which an insurer agrees to pay for injuries suffered by third parties as the result of intentional acts of the insured.
In summary, based on the holding of Titan I, we conclude that the trial court properly entered the judgment in favor of Riley and the four police officer defendants. That judgment is, therefore, affirmed.
MOTION TO STAY DENIED; AFFIRMED.
ALMON, SHORES, HOUSTON, KENNEDY, and INGRAM, JJ., concur.
HOOPER, C.J., and MADDOX and BUTTS, JJ., dissent.
HOOPER, Chief Justice (dissenting):
I must respectfully dissent. The sole issue on appeal in Titan Indemnity Co. v. Riley, 641 So. 2d 766 (Ala.1994) (Titan I), was whether Titan was obligated to defend the officers against charges based on the intentional acts alleged in the federal action filed by Riley. The issue now before this Court in this appeal is whether Titan is obligated to indemnify the officers. Riley argues that the principles of res judicata preclude Titan from raising the issue of whether Titan is obligated to indemnify the officers.
This Court held in Ex parte Jefferson County 656 So. 2d 382, 384-85 (Ala.1995):
I do not think that the claim involved in this appeal is the "same cause of action" that was presented in Titan I. It is well settled that an insurer's obligation to defend is separate and distinct from its obligation to indemnify. Universal Underwriters Insurance Co. v. Youngblood, 549 So. 2d 76 (Ala.1989); United States Fidelity & Guaranty Co. v. Armstrong, 479 So. 2d 1164 (Ala.1985); Ladner & Co. v. Southern Guaranty Insurance Co., 347 So. 2d 100 (Ala.1977). Because the "obligation to indemnify" is different from the "obligation to defend," this Court is not precluded from addressing the merits of Titan's appeal.
I do not agree that the policy issued by Titan requires it to indemnify the defendant police officers if Riley's action against them in the federal court is ultimately successful. In order to determine whether the police officers were insured by Titan, this Court should look to the language of the written agreement between the partiesthe insurance policy. The majority quotes a portion of the insurance policy that defines several terms, but it does not quote the "coverage" clause in the body of the opinion. Instead, it quotes a portion of the coverage clause in a footnote.
The insurance policy explicitly states:
(Emphasis added). Obviously, the alleged activity of "setting up" an innocent person is *708 not a law enforcement activity that is within the scope of a police officer's duty to the City of Montgomery. I see no ambiguity in the policy language.
Nevertheless, the majority in Titan I found that there is an ambiguity in the policy because the policy states that it covers officers for acts within the scope of their employment, and also covers various other causes of action, including claims brought under the Federal Civil Rights Act. However, there is no conflict between the two clauses of the policy. In order for one of these police officers to be covered for claims brought under the Federal Civil Rights Act, the officer must first be found to have acted within the scope of his duty to the City of Montgomery. If an officer acts within that scope and is sued under the Federal Civil Rights Act, then the insurer is obligated to defend and indemnify the officer. On the other hand, if an officer acts outside the scope of his employment, as in this case, then the officer is not covered.
I would hold that the issue whether Titan is obligated to indemnify the police officers in this action is not barred from our consideration by the principles of res judicata. In addition, Titan is not obligated to indemnify the police officers, because the alleged activities are clearly not within the scope of a police officer's duties. Therefore, I must respectfully dissent.
BUTTS, Justice (dissenting).
I must respectfully dissent. I was not a member of this Court when it released its opinion in Titan Indemnity Co. v. Riley, 641 So. 2d 766 (Ala.1994) ("Titan I"), which held that, based on the same facts as those presented in this present case, Titan Indemnity Company had a duty to defend the City of Montgomery police officers in the action brought against them by John Thomas Riley, Jr. I dissent because I believe the holding in Titan I is not controlling on the issue whether Titan must also indemnify those officers.
An insurer's duty to defend is generally broader than its duty to indemnify. Universal Underwriters Ins. Co. v. Youngblood, 549 So. 2d 76 (Ala.1989); United States Fid. & Guar. Co. v. Armstrong, 479 So. 2d 1164 (Ala. 1985). The insurer's duty to defend is determined by the language of the insurance policy and the allegations of the complaint. Ajdarodini v. State Auto Mut. Ins. Co., 628 So. 2d 312 (Ala.1993). However, the duty to indemnify is specifically limited by the policy language. The Titan insurance policy at issue reads:
"A. WE WILL PAY.
(Emphasis added.) Although Titan I held that the policy was ambiguous as to whether the term "occurrence" included intentional acts such as those alleged in the complaint against the police officers, that opinion did not dispose of the issue whether the alleged actions of the officers were taken in the line and scope of their law enforcement activities.
I believe the alleged actions taken by the police officers in this case were not taken in the line and scope of their law enforcement duties. It was not in the line and scope of their duties as law enforcement officers for them to misappropriate funds, to falsify files, to fabricate information against Riley, to knowingly conduct an unconstitutional search of his person and his automobile, to plant false evidence in his automobile, to knowingly file a criminal complaint against him unsupported by probable cause, or to knowingly provide false testimony against him in support of the criminal prosecution. Clearly, these alleged acts are not within the line and scope of the duties for law enforcement officers in the State of Alabama, because the *709 officers' intentional misconduct did not arise out of an original act that was within the line and scope of their duties. I would recognize that a police officer's wrongful act may be in the line and scope of police work, such as when an officer uses excessive force during an otherwise valid arrest, but this case does not present such a situation.
I would reverse the judgment of the trial court.
MADDOX, J., concurs.
[1] In addition to these provisions, the policy provided:
"D. WHO IS INSURED.
"Each of the following is an insured, but only for acts within the scope of their duties for you:
". . . .
"3. All law enforcement officers of the law enforcement agency."
(Emphasis added.)
[2] This language, of course, essentially mirrors the language of Titan I, 641 So. 2d at 768. | July 3, 1996 |
ce2c64a1-8fac-44e7-a35f-5fbbaa983bb6 | Cessna Aircraft Co. v. Trzcinski | 682 So. 2d 17 | 1941615 | Alabama | Alabama Supreme Court | 682 So. 2d 17 (1996)
CESSNA AIRCRAFT COMPANY
v.
Robert TRZCINSKI.
1941615.
Supreme Court of Alabama.
July 12, 1996.
*18 Howard Daigle, Jr. of Seale Macaluso Daigle & Ross, Hammond, LA; Michael A. Florie of Starnes & Atchison, Birmingham, for Appellant.
Kenneth J. Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery, for Appellee.
ALMON, Justice.
Cessna Aircraft Company appeals from a judgment entered by the Montgomery County Circuit Court on a jury verdict in Robert Trzcinski's action for damages under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). The jury awarded Trzcinski $2.5 million in compensatory damages for the injuries he suffered and the medical expenses he incurred in an airplane crash. The jury also awarded $500,000 in punitive damages for Cessna's alleged wanton misconduct. The issue is whether Trzcinski met his burden of proving wanton misconduct by Cessna.
Trzcinski, a pilot with nearly 40 years' experience, was employed by "Farm Air" as a crop duster. On August 19, 1992, he was piloting a Cessna crop duster that crashed after coming in contact with electrical power lines. At the time of the crash Trzcinski was wearing a "shoulder harness safety restraint system" that had been manufactured by Cessna for use in the particular type of airplane he was flying, a Cessna AT188B.
The shoulder harness was on an "inertia reel" system that was attached to the wall of the cockpit behind the pilot's head and which operated essentially the same way a shoulder harness in an automobile works. The inertia reel system is designed to lock if there is a sudden stop or impact and to prevent the occupant from being thrown forward. In this case, when the airplane hit the ground the inertia reel locked; however, the shoulder harness separated at the juncture where the two shoulder straps are sewn together with the strap that is spooled on the inertia reel. This failure caused Trzcinski to be thrown forward by the force of impact and to strike his face on the instrument panel of the airplane. The impact with the instrument panel caused Trzcinski to be permanently and totally blinded.
On March 15, 1994, Trzcinski filed an action for damages, alleging negligence, wantonness, and liability under the AEMLD. The complaint also contained a count on behalf of Trzcinski's wife Lynn for damages for loss of consortium.
Pre-trial investigations revealed that the shoulder harness was in fact defective, in that two rows of required stitches were missing from this particular harness. Apparently, the Cessna seamstress who sewed this harness forgot to include a double row of stitching. As a result of this evidence, Cessna admitted liability under the AEMLD, but denied any wanton conduct that would justify the award of punitive damages.
Cessna moved for a directed verdict on the issue of punitive damages, at the conclusion of the plaintiff's case; it made a similar motion at the conclusion of the trial. Cessna *19 argued that Trzcinski had failed to present clear and convincing evidence that Cessna had acted wantonly in manufacturing or in inspecting the harness. The circuit court denied both of these motions and submitted to the jury the issue of wantonness and punitive damages. After the jury returned a verdict awarding punitive damages, Cessna moved for a judgment notwithstanding the verdict, challenging the award of punitive damages. On appeal, Cessna argues that Trzcinski failed to produce clear and convincing evidence of wantonness.[1]
The motion for a J.N.O.V. is a procedural device used to challenge the sufficiency of the evidence to support the jury's verdict. See, Rule 50(b), A.R. Civ. P.; Luker v. City of Brantley, 520 So. 2d 517 (Ala.1987). Ordinarily, the denial of a directed verdict or a J.N.O.V. is proper where the nonmoving party has produced substantial evidence to support each element of his claim.[2] However, if punitive damages are at issue in a motion for a directed verdict or a J.N.O.V., then the "clear and convincing" standard applies. Senn v. Alabama Gas Corp., 619 So. 2d 1320 (Ala.1993).
Section 6-11-20(a), Ala.Code 1975, provides that punitive damages may be awarded in tort actions "where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in ... wantonness" that caused injury to the plaintiff. "Clear and convincing evidence" is defined in the Code:
Ala.Code 1975, § 6-11-20(b)(4).
Thus, the "clear and convincing" standard requires the trial judge to do more than merely determine whether the nonmoving party has presented substantial evidence to support the claim for punitive damages. It is not the trial judge's function when ruling on a directed verdict or J.N.O.V. motion to weigh the evidence; rather, he must view the evidence in a light most favorable to the nonmoving party. If in viewing the evidence in that light the judge reasonably can conclude that a jury could find the facts in favor of the nonmovant and that the jury could be firmly convinced of that decision after considering the evidence in opposition, then the judge should deny the motion.
We have thoroughly reviewed the evidence. We conclude that the circuit court erred in denying Cessna's motion for J.N.O.V. as to the award of punitive damages. Trzcinski failed to present clear and convincing evidence that Cessna's actions regarding the process of designing and manufacturing the shoulder harness constituted wanton misconduct.
"Wantonness" is defined by § 6-11-20(b)(3) as "[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others." Furthermore, this Court has held on more than one occasion that "wantonness" is not merely a higher degree of negligence; instead, it is a "qualitatively different tort concept of actionable culpability." Lynn Strickland Sales & Service Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala.1987). While a party claiming wantonness does not have to prove an intent to injure, this Court has held that wantonness requires proof of some degree of conscious culpability. Yamaha Motor Co., Ltd. *20 v. Thornton, 579 So. 2d 619, 623 (Ala.1991). See also, Hamme v. CSX Transportation, Inc., 621 So. 2d 281 (Ala.1993).
The defective harness was manufactured by Cessna in April 1989. In 1989, Cessna was manufacturing this particular type of restraint system only as needed for spare parts or as orders would come in for replacement harnesses. When an order was placed, a seamstress from the upholstery department would gather the necessary parts and then assemble the safety harness according to the following standards adopted by Cessna: The seamstress obtains an inertia reel, which has a strap spooled on the reel. She pulls out this strap and "sandwiches" it between two other straps that go over the pilot's shoulders. The three pieces are sewn together in a pattern described as "two rows of stitching around the outer perimeter and then two rows of stitching in a diamond pattern in the center of the perimeter stitching."[3] This "diamond pattern" stitching was omitted from Trzcinski's harness.
The deposition testimony of Delbert Griffith, a 35-year Cessna employee from the upholstery department, revealed that one seamstress performs the entire task of manufacturing a single harness and that it takes the seamstress about an hour and a half to assemble and sew the harness. The seamstress manufactures the requested number of harnesses, plus an additional harness; for example, if an order comes in for two harnesses, the seamstress actually manufactures three harnesses. One of the three harnesses is randomly selected and sent to "quality control testing," where it is placed in a machine and "pull tested" until it fails. The purpose of this test is to ensure that the harnesses meet the strength standards adopted by Cessna. The seamstress places the other two harnesses on an inspection table and someone from quality control inspects them.
A Cessna quality assurance supervisor testified through deposition, which was read in open court, that in 1989 written procedures called for the inspectors to conduct a four-part inspection of a harness or harnesses randomly selected from a lot that had been placed upon the inspection table. The supervisor testified that the defective harness was one of two harnesses in a lot and that the inspector inspected one of those harnesses and "visually looked at" the other one:
According to Cessna's process, if the inspected harness complies with the standards and the harness sent to quality control testing is satisfactory, then the entire lot is accepted by the inspector and the harnesses are sent to the spare parts department or distributed to the party who placed the order.
Trzcinski contends that this process exhibits a reckless or conscious disregard for the safety of the pilots who rely on the harnesses. He relies on several facts regarding the process in an attempt to picture Cessna's manufacturing process as an "archaic" system with little or no regard for the quality or safety of its harnesses. Trzcinski contends that the direct and circumstantial evidence presented in this case "prove[s] the elements of wantonness, including knowledge on the part of Cessna."
In his brief, Trzcinski reviews the facts that he claims constitute clear and convincing evidence of wantonness. He argues that the simple fact that the seamstress failed to sew the harness in accordance with the standards is enough to create a jury question on wantonness, because, he argues, she had knowledge that the failure to follow the standard was a "reckless disregard [of] the safety of pilots." However, there was no evidence presented that the seamstress knowingly left *21 out the stitching or acted with a conscious or reckless disregard in manufacturing the harness. Trzcinski also seeks to rely on the fact that Cessna did not have a seat belt department, but instead, used a seamstress from the upholstery department to manufacture the harnesses. However, there was no evidence that allowing the upholstery department, as opposed to a seat belt department, to manufacture the harnesses increased the possibility of defective harnesses. Nor was there any evidence that the upholstery department had produced any other defective harnesses.
Trzcinski disputes that this was a one-time isolated incident and contends that Cessna routinely failed to manufacture harnesses that conformed to Cessna's standards. He introduced four harnesses into evidence. One of the four was the actual harness used by Trzcinski, which was made in 1989 and which was obviously defective. The second was the harness manufactured in 1977 that Trzcinski had removed from the airplane and replaced with the defective harness; the third one was a harness manufactured in 1989 and taken off a sister plane at Farm Air; the fourth harness was one that Trzcinski's attorneys had purchased to use as evidenceit had been manufactured in 1994.
The alleged defect in the 1977 harness is that the "diamond-pattern" stitching does not show on the back of the sewn juncture as seen on the standard drawing, although it does show on the front of the sewn juncture. In contrast, the harness from the sister plane does have the diamond-pattern stitching on the front and back of the sewn juncture. The harness that was purchased by Trzcinski's attorneys does not have the inertia reel straps; instead, the straps are "stacked" with the inertia reel strap on the bottom. Trzcinski contends that these four belts prove that Cessna routinely manufactures harnesses that do not conform to its own standard.
In response, Cessna presented the testimony of Bob Wethington, an aeronautical engineer employed by Cessna since 1964. He conducts strength tests on various Cessna products, including shoulder harnesses such as those in question here to ensure that the products meet not only Cessna's standards but the standards of the Federal Aviation Agency (FAA) as well. Wethington testified that the three harnesses other than the one involved in Trzcinski's crash appear different because the manufacturing process has changed over the years. He explained that when the 1977 belt was produced the upholstery department utilized a two-step process in sewing the three straps together. He testified that the seamstress would pull out the inertia reel strap, lay one of the straps on it, run the two straps through the sewing machine, turn the straps over, and sew the other strap onto the inertia reel strap. After this process, the first stitches placed in the front strap would not show on the back strap. Wethington testified that by 1989 Cessna had begun to use a one-step operation wherein both shoulder straps were put in place and all the sewing was done at one time. As a result of this procedure, the diamond-pattern stitching would show on both sides of the sewn juncture. This evidence explains the distinction between the 1977 and 1989 harnesses. Wethington testified that harnesses made both ways were strength-tested and met the required standard.
In regard to the harness purchased by Trzcinski's attorneys, Wethington testified that after 1989 Cessna began "stacking" the straps, as opposed to "sandwiching," after someone in the upholstery department suggested the procedure to the engineering department. He testified that the engineering department tested several sample harnesses with the stacking procedure, that all the harnesses passed the test, and that the new procedure was implemented. Wethington did admit that Cessna had not changed the standard drawing to reflect this change; therefore, if someone compared harnesses made with the stacking procedure to the standard drawing, they would appear not to conform.[4]
*22 Thus, the evidence presented by Cessna explains that these were intentional changes that represented a purposeful evolution in Cessna's manufacturing process.
Trzcinski also argues that actions taken by Cessna after his crash are further evidence that Cessna acted wantonly. He argues that Cessna continued to manufacture harnesses that did not conform to its own standards. He specifically refers to the fact that the upholstery department was stacking the belts instead of sandwiching them. However, as discussed above, the testimony of Bob Wethington explained this change.[5]
Trzcinski offered no evidence, expert or otherwise, indicating that Cessna failed to undertake safety-design engineering or that it was aware that its manufacturing process was likely to produce defective harnesses. Likewise, there was no evidence that the harnesses were prone to the kind of failure experienced by Trzcinski, or that there had been any reports of similar incidents in the past. Pitt v. Century II, Inc., 631 So. 2d 235, 240 (Ala.1993). In fact, the evidence presented by Cessna proved just the opposite.
Bob Wethington explained in great detail the amount of testing that was performed during the design phase of the model 188 shoulder harness and the steps taken by Cessna to ensure that the harnesses continue to meet the standards. He testified that when this harness type was being designed the FAA had a minimum requirement that shoulder harnesses be able to withstand a "nine g forward load" based on a 170-pound pilot. Cessna, however, adopted an enhanced "twenty-five g" standard based on a 200-pound pilot. Wethington testified that the engineering department developed the best geometrical design for the harness, and that Cessna then conducted numerous tests on the harness to ensure that the harness was strong enough to withstand the loads that the engineers intended for it to withstand. These tests involved placing the shoulder harness over a wooden torso mounted on a sled and applying to the harness a simulated forward load of 5,000 pounds. The model 188 shoulder harness passed all the tests and was certified by the FAA as meeting its minimum requirements. Next, Cessna developed a "standardized manufacturing assembly process" to guarantee that the harnesses produced by this process were exact duplicates of the one certified by the FAA. The FAA examined the process described earlier in this opinion and issued a "production certificate" allowing Cessna to produce the harnesses based on this process and to place them in airplanes.
Wethington also testified about the "lot testing," described above, which is performed every time the upholstery department receives an order for a replacement shoulder harness. He testified that the tests are performed to ensure that the "strength of the part has been retained" and that the seamstresses have not "forgotten how to make it [the harness] between the lots." During the time he had been employed at Cessna, no model 188 shoulder harness had ever failed the lot test. Wethington also testified that Cessna had never been notified that a model 188 shoulder harness, other than Trzcinski's, had failed in this manner. Cessna's testing and inspection procedures were approved by the FAA, and the evidence concerning these procedures would not support a finding, by clear and convincing evidence, that Cessna wantonly disregarded the need for safety and reliability of its safety harnesses.
Having carefully reviewed all of the evidence pertaining to the wantonness claim, we conclude that Trzcinski failed to produce clear and convincing evidence that Cessna exhibited a conscious or reckless disregard of likely injury in the manufacture of its safety harnesses, and in particular Trzcinski's safety harness. Because Trzcinski failed to present clear and convincing evidence that Cessna was guilty of wanton misconduct, the circuit court erred in denying Cessna's motion for a J.N.O.V. on the issue of punitive damages. Thus, insofar as it awarded punitive damages, the judgment is *23 reversed. The cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
*24
[1] Cessna's docketing statement filed in this Court originally listed excessive compensatory damages as one of the issues on appeal and it originally named Lynn Trzcinski as an appellee. However, Cessna, in its briefs to this Court, raises no issue regarding compensatory damages. The only issue briefed by Cessna regards the punitive damages award to Robert Trzcinski. Accordingly, our review in this case is limited to the punitive damages issue. Furthermore, the Court has dropped Lynn Trzcinski's name from the style of this appeal.
[2] A court applies the same standard when ruling on a motion for J.N.O.V. as when ruling on a motion for a directed verdict. Griggs v. Finley, 565 So. 2d 154 (Ala.1990).
[3] For a better understanding of the configuration of the model 188 shoulder harness involved in this case, we attach, as Appendix A, a diagram of the juncture of the two shoulder harness straps and the inertia reel strap.
[4] The harness from Trzcinski's airplane was sandwiched in accordance with the process in use in 1989, when it was made, and it matched the other 1989 harness except for the absence of the diamond-pattern stitching.
[5] Cessna argues that the post-accident evidence was erroneously admitted, but we make no ruling on this question. | July 12, 1996 |
805d0de4-d8be-49e3-a393-3a6232929fd8 | Med Center Cars, Inc. v. Smith | 682 So. 2d 382 | 1941257, 1941258, 1941259, 1941375, 1941376, 1941378, 1941624 | Alabama | Alabama Supreme Court | 682 So. 2d 382 (1996)
MED CENTER CARS, INC., d/b/a Med Center Mazda
v.
Douglas SMITH and Kimberly Smith.
JIM BURKE AUTOMOTIVE, INC.
v.
Gregory TAPSCOTT, et al.
U-J CHEVROLET, INC., and Jim Bishop Chevrolet-Geo-Buick-Oldsmobile, Inc.
v.
Stephen H. SCHOEPFLIN and Olivia Thompson, et al.
ROEBUCK CARS, INC., d/b/a Roebuck Mazda
v.
David REYER.
MITCHELL MOTORS, INC., d/b/a Mitchell Mazda
v.
Willie HERRING.
CROWN PONTIAC, INC.
v.
Louis CLEMENTS.
BONDY'S FORD, INC.
v.
Elisha BOWENS and Agnes Bowens.
1941257, 1941375, 1941258, 1941259, 1941376 to 1941378 and 1941624.
Supreme Court of Alabama.
April 26, 1996.
Rehearing Overruled June 28, 1996.
Concurring Opinion in Result in Overruling Rehearing June 28, 1996.
Robert H. Rutherford, Jennifer M. Busby and Erie D. Franz of Burr & Forman, Birmingham, for Med Center Cars, Inc., d/b/a Med Center Mazda; Crown Pontiac, Inc.; Roebuck Cars, Inc., d/b/a Roebuck Mazda; and Mitchell Motors, Inc., d/b/a Mitchell Mazda. (Attorney Franz appeared on application for rehearing.)
William A. Davis III and Steven T. McMeekin of Starnes & Atchison, Birmingham, for Jim Burke Automotive, Inc.
*383 C. Lee Reeves and Samuel M. Hill of Sirote & Permutt, P.C., Birmingham, for U-J Chevrolet Company, Inc. and Jim Bishop Chevrolet-Geo-Buick-Oldsmobile, Inc.
Jeffrey E. Friedman and P. Thomas Dazzio, Jr. of Starnes and Atchison, Birmingham, for Bondy's Ford, Inc.
Lanny S. Vines, Lloyd W. Gathings II, Michael L. Allsup and J. Flint Liddon of Emond & Vines, Birmingham, for Appellees.
Opinion by Justice Houston Concurring in Result in Overruling Rehearing June 28, 1996.
BUTTS, Justice.
The defendants appeal from the denial of their motions to stay proceedings pending arbitration of all claims in a purported class action.
Gregory Tapscott sued MS Dealer Service Corporation, Jim Burke Automotive, Inc., Mississippi Life Insurance Company, and MS Casualty Insurance Company, alleging that the defendants had violated the Alabama Mini-Code and had committed fraudulent misrepresentation by selling him an extended service plan as part of his purchase of an automobile, without showing the cost of the plan as part of the finance charge that was reflected on the sale documents. Tapscott asserted these claims on behalf of himself and a putative class of persons who had purchased or had been charged for extended service contracts similar to that which he purchased. He also sought to have certified as a class those named defendants who had sold similar extended service plans to the named co-plaintiffs.
In subsequent amendments to his complaint, Tapscott added Jim Bishop Chevrolet-Geo-Buick-Oldsmobile, Inc.; U-J Chevrolet Company, Inc.; Med Center Cars, Inc., doing business as Med Center Mazda; the Automobile Dealers Association of Alabama; and the Alabama Independent Automobile Dealers Association. He also added additional plaintiffs, including a putative sub-class of plaintiffs who had bought automobile club or motor club memberships from the defendant dealerships.
Jim Burke Automotive and Med-Center Mazda moved to compel arbitration and to stay the judicial proceedings pending arbitration, pursuant to an arbitration clause contained within the buyer's orders that Tapscott and other plaintiffs had signed as part of their respective purchases of automobiles from the respective dealerships. Jim Bishop Chevrolet and U-J Chevrolet joined the other dealerships in moving to compel arbitration. The trial court denied all these motions on April 11, 1995, and Med Center Mazda appealed from that denial. Tapscott then amended his complaint to add, among other parties, Roebuck Cars, Inc., doing business as Roebuck Mazda, and Mitchell Motors, Inc., doing business as Mitchell Mazda, as defendants. The dealerships then moved a second time for arbitration and a stay of the proceedings. The trial court denied all the motions, without stating its reasons for doing so. The eight named defendants appeal from the denial of these motions.
We find in the record no order of the trial court certifying either the plaintiffs or the defendants as a class. In his complaint and in each amendment thereto, Tapscott consistently asked the trial court to certify plaintiff and defendant classes and, in their respective answers, the defendants consistently denied that these certifications would be proper. While the parties never actually moved for a hearing on the class certification question, it was unnecessary for them to do so; a certification order is mandatory for an action to proceed as a class action, under Rule 23, Ala.R.Civ.P, and the trial court therefore has a duty to determine the class action question, regardless of whether any of the parties move for it to do so. Bagley v. City of Mobile, 352 So. 2d 1115 (Ala.1977). In order to have a class action, the trial court is required to determine that the party seeking to have the class certified has met all the prerequisites of Rule 23(a) and at least one of the elements of Rule 23(b). There is nothing in the record to show that this requirement has been met; thus, we have before us neither a plaintiff class nor a defendant class.
When an appeal from a purported class action is brought without a class certification in the record, appellate courts sometimes consider the named appellants to be joined as parties in a single claim and review the issues as they pertain solely to the named appellants. Hall v. City of Dothan, *384 539 So. 2d 286 (Ala.Civ.App.1988); Pharo v. Smith, 621 F.2d 656, on rehearing in (unrelated) part, 625 F.2d 1226 (5th Cir.1980). The named appellants in Hall and Pharo were similarly situated and their claims were identical; thus, there was nothing to indicate that the named appellants, or the remaining parties not named on appeal, could not have been correctly certified as a class. It was therefore acceptable for the appellate court to consider the parties to be joined plaintiffs for the purposes of reviewing their claims.[1]
In this case, however, the parties are not similarly situated. Certainly, the fact that some of the plaintiffs have signed agreements containing an arbitration clause, while other plaintiffs have not, makes the need for a certification hearing and a written order all the more compelling. Further, the eight separate briefs of the named appellants do not advance the same arguments; rather, they indicate that there are disparities in the circumstances of the individual transactions, in the actions of the individual dealerships, and in the purchase agreements at issue. Under these circumstances, we cannot presuppose that a class certification of either plaintiffs or defendants would be proper. It would, therefore, be inappropriate to consider the named appellants to be properly joined parties, in an effort to shoehorn this appeal into a reviewable procedural posture. We therefore conclude that, because the record does not indicate that the parties to this action have ever been certified as a class, the issues brought here are not ready for our review and these appeals are therefore due to be dismissed.
DISMISSED.
HOUSTON, KENNEDY and COOK, JJ., concur.
HOOPER, C.J., and MADDOX, J., concur specially.
MADDOX, Justice (concurring specially).
I concur only because mandamus is an extraordinary remedy and is appropriate only when the petitioner shows a clear legal right to the relief requested. I believe that the petitioners have not shown a clear legal right to have arbitration compelled, because the trial judge has yet to decide which plaintiffs should be allowed to join in the class action. As indicated by the majority opinion, the trial judge has not properly certified the class, considering that the proposed class consists of two different groups of plaintiffs: 1) a group of persons who have signed a sales contract containing an arbitration clause, and 2) a group of persons whose contracts do not contain an arbitration provision.
However, I note that in determining which plaintiffs will be included in the prospective class, the trial judge would be bound by the mandate issued by the United States Supreme Court in Allied Bruce-Terminix Cos. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995), wherein that Court held that the Federal Arbitration Act extends to the broadest reaches of the Congress's constitutional power to regulate interstate commerce.
Where a contract contains an arbitration clause and the contract involves interstate commerce, a trial court is required to compel arbitration upon motion by any party bound by the contract. Allied Bruce-Terminix plainly states that the right to compel arbitration is a federal right and should be enforced by State officials, so as not to deprive a party of federal constitutional rights. I have consistently expressed my opinion that a motion to compel arbitration must be granted, if the dispute involves a contract evidencing interstate commerce and that contract contains an arbitration provision. See, Jim Burke Automotive, Inc. v. Beavers, 674 So. 2d 1260 (Ala.1995) (Maddox, J., dissenting). In doing so, I attempt to ensure that a party will not be deprived of a federal right to which the party is duly entitled.
HOOPER, C.J., concurs.
BUTTS, Justice.
APPLICATION OVERRULED.
*385 HOOPER, C.J., and MADDOX, KENNEDY, and COOK, JJ., concur.
HOUSTON, J., concurs in the result.
HOUSTON, Justice (concurring in the result in overruling the application for rehearing).
In my opinion, the plaintiffs who have signed arbitration agreements cannot be members of the class. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 725 n. 5 (11th Cir.1987), cert. denied, 485 U.S. 959, 108 S. Ct. 1220, 99 L. Ed. 2d 421 (1988). The defendants will not be deemed to have waived their arbitration rights by participating in discovery or other proceedings relating to a class certification.
[1] The respective defendants in Hall and Pharo were not, as here, purported to be a class. | June 28, 1996 |
cd01f434-ff68-4741-85e1-5d532a6eec73 | Jamison, Money, Farmer & Co. v. Standeffer | 678 So. 2d 1061 | 1941526 | Alabama | Alabama Supreme Court | 678 So. 2d 1061 (1996)
JAMISON, MONEY, FARMER & COMPANY, P.C., and Charles F. Horton,
v.
William STANDEFFER, M.D., and Kathryn Short Drew.
1941526.
Supreme Court of Alabama.
May 31, 1996.
*1063 Robert M. Girardeau of Huie, Fernambucq & Stewart, Birmingham, for Appellants.
William R. Myers, Deborah S. Braden, Howard Y. Downey and John G. Watts of Yearout, Myers & Traylor, P.C., Birmingham, for Appellees.
*1064 INGRAM, Justice.
William Standeffer, M.D., and his former wife, Kathryn Short Drew, sued Jamison, Money, Farmer & Company, P.C. ("JMF"), and Charles F. Horton, alleging a negligence claim and other claims concerning the tax consequences of Standeffer's disability insurance payments. The negligence claim was based upon the alleged professional malpractice of Horton, an accountant with the JMF accounting firm. The trial court submitted the negligence claim to a jury, and the jury returned a verdict in favor of Standeffer and Drew, awarding them $415,000 in damages. The trial court denied JMF and Horton's motions for a remittitur, J.N.O.V., or new trial. JMF and Horton appeal from a judgment based upon the jury's verdict.
A jury's verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala.1988). In addition, a judgment based upon a jury verdict and sustained by the denial of a motion for a new trial will not be reversed unless it is plainly and palpably wrong. Ashbee v. Brock, 510 So. 2d 214 (Ala. 1987). Because the jury returned a verdict for Standeffer and Drew, any disputed questions of fact must be resolved in their favor, and we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict. State Farm Auto. Ins. Co. v. Morris, 612 So. 2d 440, 443 (Ala.1993). In short, in reviewing a judgment based upon a jury verdict, this Court must review the record in a light most favorable to the appellee. Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208, 1211 (Ala. 1990).
Viewed in the light most favorable to Standeffer and Drew, Continental Cas. Ins. Co., the record suggests the following:
Standeffer began practicing obstetrics and gynecology in Tuscaloosa in the mid-1960s. Horton, a certified public accountant employed by JMF, began preparing tax returns for Standeffer and Drew in 1967. In the early 1980s, Standeffer and other physicians formed OB-GYN Associates of Tuscaloosa, P.C. ("OB-GYN"). JMF provided its accounting services to OB-GYN, compiling financial statements and tax returns and conducting some bookkeeping.
Standeffer and the other OB-GYN doctors individually maintained disability policies, as well as an OB-GYN group disability insurance policy. At OB-GYN staff meetings the group disability insurance was discussed, and representatives of JMF, including Horton, attended the meetings. The doctors were informed that the income tax consequences of disability benefits are different, dependent upon the manner in which the insurance premiums are paid. If the doctors themselves pay the premiums, then the disability benefits, when issued, are considered nontaxable income. If OB-GYN pays the premiums for the doctors, then the benefits would be taxable income. OB-GYN decided that it would pay the premiums for the doctors.
In 1980, Standeffer began to experience osteoarthritis, which required surgery. Standeffer's health problems resumed in 1985, when severe pain in his back, shoulders, and neck led him to conclude that he would soon become unable to practice in his medical specialty. With this in mind, Standeffer became concerned about the taxability of disability benefits. According to Standeffer, it was during this period that he began to speak with Horton concerning the disability policies and their taxability. Standeffer stated:
The record indicates that, on individual disability insurance policies, the employee need only make the last premium payment before the disability for the insurance proceeds to be considered nontaxable. However, on group policies, such as the one utilized by OB-GYN, the employee must make the last three premium payments before the disability for the insurance proceeds to be nontaxable; this is known in tax parlance as the "three-year look-back rule." Premium payments are generally made yearly. Standeffer possessed individual policies and was also covered by the group policy established by OB-GYN.
Standeffer began to pay his own premiums on the policies. However, concerned that his associates were having their premiums paid by OB-GYN while he was paying for his own premiums, Standeffer questioned Horton about the tax consequences that would result if he received a salary increase from OB-GYN equal to the amount of premiums he was paying. Standeffer stated that Horton told him that, as long as he paid tax on the increase in salary, there would be no taxation problem with disability insurance payments. OB-GYN then raised Standeffer's salary by the amount of premiums he paid to his insurance carriers.
In early 1987, Standeffer became disabled and began to receive disability insurance payments. Standeffer stated that he suggested to Horton, who was preparing his 1987 tax returns, that he include the disability income as income on those returns; according to Standeffer, Horton "said that wasn't necessary." According to Standeffer, he discussed this same issue with Horton while Horton prepared his 1988, 1989, and 1990 returns, but on each occasion Horton stated that listing the income was not necessary.
In 1991, the IRS began to audit Standeffer's returns. In 1993, it found deficiencies in Standeffer's tax payments from 1988 through 1992, due to Standeffer's failure to pay tax on the disability income he had received during those years. The IRS found that OB-GYN's reimbursement of Standeffer's disability premiums made Standeffer's insurance proceeds taxable. It also noted that OB-GYN had previously made payments on Standeffer's personal policies. The IRS utilized the "three-year look-back rule" to discover the tax deficiencies. Standeffer owed approximately $375,000 in deficiencies and interest; the total liability was eventually negotiated down to $225,000. Standeffer paid approximately $22,500 in attorney fees during the audit. The record indicates that the State of Alabama Department of Revenue had a similar claim for taxes and interest and that that claim had not been fully prosecuted as of the time of the trial in this case.
Horton denied that Standeffer engaged his services to set up a disability insurance tax plan. Horton stated that, if he had been asked to create such a plan, he would have billed his client for hourly fees and costs incurred in its preparation. Horton testified that he spoke with Standeffer in 1985 about his disability insurance, but that he gave little advice on the subject to Standeffer. He said he could not recall whether he mentioned the three-year look-back rule, but he stated that he knew that, as of mid-1985, OB-GYN had made premium payments on all of Standeffer's policies. Horton further said that Standeffer told him that he was personally paying his insurance premiums and that he probably told Standeffer that the proceeds would be nontaxable if he paid the last premium before a disability. Another JMF accountant stated that he and Horton told Standeffer that the taxability issue on reimbursed premiums was a "gray area," but Standeffer stated that he "would not do anything that was a gray zone, had [he] been told that."
*1066 JMF and Horton first argue that the Statute of Frauds bars Standeffer and Drew's action against them, because, they contend, the alleged agreement between Horton and Standeffer would have been oral and it could not have been accomplished within one year. Thus, they argue, that agreement would have been void under the Statute of Frauds.
The Alabama Statute of Frauds, Ala.Code 1975, § 8-9-2, provides:
The Statute of Frauds is an affirmative defense against breach of contract actions. However, Standeffer and Drew withdrew their breach of contract claim before the case was submitted to the jury. Their negligence claim, alleging professional malpractice, was the sole claim presented to the jury. JMF and Horton raised the Statute of Frauds issue in their motions for directed verdict and in their J.N.O.V. motion. However, although JMF and Horton originally requested a jury instruction on the Statute of Frauds, they withdrew their request for that instruction. The jury was not charged on the Statute of Frauds affirmative defense.
This was a professional malpractice action, and the evidence of the underlying agreement between Standeffer and Horton served to provide a basis for that action; in other words, the evidence was produced to show that Horton undertook a duty and breached that duty in regard to Standeffer's disability insurance. Standeffer contended that Horton's ongoing discussions with him demonstrated that Horton, as his accountant, undertook a duty to aid him in a plan to prevent the taxation of his disability insurance benefits and that Horton breached that duty. Standeffer and Drew presented evidence creating factual issues concerning these allegations, and their evidence was sufficient to warrant the submission of those issues to the jury. Because there was no breach of contract claim submitted to the jury, the Statute of Frauds was not a proper affirmative defense. This Court squarely addressed this issue in Compton v. Alabama Power Co., 216 Ala. 558, 114 So. 46 (1927), wherein it reviewed a negligence action arising from an oral agreement:
216 Ala. at 560, 114 So. at 48. Therefore, under the circumstances of this case, we find no merit in JMF and Horton's arguments that the Statute of Frauds is a valid defense to Standeffer and Drew's action.
JMF and Horton next contend that Standeffer and Drew failed to prove the proximate causation of their injury or harm, and they contend that the damages awarded were speculative.
Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new and independent causes, produces an injury or harm and without which the injury or harm would not occur. Thetford v. City of Clanton, 605 So. 2d 835, 840 (Ala.1992); Crowne Investments, Inc. v. Bryant, 638 So. 2d 873 (Ala.1994). We hold that the jury was presented sufficient evidence for it to infer that, but for Horton's failure to properly advise Standeffer as to the taxation of his disability insurance payments, Standeffer and Drew's tax payments would not have contained the deficiencies discovered by the IRS. The jury could reasonably have found an agreement between Horton and Standeffer that Horton would advise and aid Standeffer in regard to the *1067 disability insurance policies and could reasonably have found that Horton was negligent in his actions concerning the policies and thereby proximately caused Standeffer and Drew's loss.
We further reject the argument that the jury made a speculative award of damages. It is true that damages may be awarded only where they are reasonably certain. Damages may not be based upon speculation. Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.1988); see also Alabama Power Co. v. Alabama Public Service Commission, 267 Ala. 474, 103 So. 2d 14 (1958). However, "[t]his does not mean that the plaintiff must prove damages to a mathematical certainty or measure them by a money standard. Rather, he must produce evidence tending to show the extent of damages as a matter of just and reasonable inference." C. Gamble, Alabama Law of Damages § 7-1 (2d ed.1988), as cited in Industrial Chemical, supra, at 820. The rule that one cannot recover uncertain damages relates to the nature of the damages, and not to their extent. If the damage or loss or harm suffered is certain, the fact that the extent is uncertain does not prevent a recovery. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S. Ct. 248, 75 L. Ed. 544 (1931); see also Shook v. Vertagreen Credit Union, 460 So. 2d 1343 (Ala.Civ.App.1984). The evidence before the juryincluding receipts relating to Standeffer's disability benefits and expert testimony indicating that the State of Alabama will levy state taxes in addition to the federal taxes the IRS has claimedwas sufficient to provide a reasonable basis for the damages award.
JMF and Horton next contend that the doctrine of equitable estoppel should bar Standeffer and Drew's recovery in this action. That doctrine applies where the person against whom it is asserted has communicated something in a misleading manner, with knowledge of the facts and with an intent that the communication be acted upon. The person asserting estoppel must have acted upon that communication and the evidence must indicate that that person would be harmed if the other person is permitted to assert a claim inconsistent with his conduct. See General Elec. Credit Corp. v. Strickland Div. of Rebel Lumber Co., 437 So. 2d 1240 (Ala.1983). JMF and Horton argue that Standeffer made misrepresentations concerning the payment of certain premiums on his disability policies. However, the jury heard the evidence concerning these alleged misrepresentations; it was instructed as to the defense of equitable estoppel; and it found that defense inapplicable to the facts of this case. Where the evidence suggesting an estoppel is susceptible of different reasonable inferences, the jury must determine whether the facts of the particular case should constitute an estoppel. Imperial Group, Ltd. v. Lamar Corp., 347 So. 2d 988 (Ala.1977); Draughon v. General Fin. Credit Corp., 362 So. 2d 880 (Ala.1978). Because the evidence indicated that the facts concerning this issue were in dispute, the trial court correctly submitted the issue to the jury. We find no error.
JMF and Horton next argue that Nancy Standeffer, who is Standeffer's second and present wife, was an indispensable party to this action. She was listed as a taxpayer on Standeffer's 1992 tax return, but was not a party to this lawsuit. JMF and Horton failed to raise this issue at trial. However, this Court has stated that matters concerning Rule 19, Ala.R.Civ.P., and its joinder provisions may be raised for the first time on appeal or may be raised by this Court ex mero motu. J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala.1981); see also Town of Dauphin Island v. Point Properties, Inc., 620 So. 2d 602 (Ala.1993).
Rule 19(a), Ala.R.Civ.P., provides in part that a person shall be joined as a party in an action if, in that person's absence, complete relief cannot be accorded among the parties. Assuming, without deciding, that Nancy Standeffer fits this criterion because of her interest in the 1992 tax return, we still must consider the provisions of Rule 19(b). Under Rule 19(b) the court must determine "whether in equity and good conscience" the action can proceed without that person. This question is particularly important when a judgment has already been rendered without the nonjoined party. When a *1068 judgment is rendered in the absence of a person who should have been joined under Rule 19(a), this Court, pursuant to Rule 19(b), must consider any prejudicial effect of that judgment on the absent person and on the parties before this Court. See 7 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1609, at 144 (1986) ("Once the trial on the merits has been concluded, [Rule 19(b) considerations] weigh heavily in favor of preserving the judgment of the trial court ... and against dismissal unless there has been real prejudice to those not before the court.").
It appears that JMF and Horton are primarily concerned with possible future litigation by Nancy Standeffer. Where it is apparent that in raising the joinder issue a party is seeking only to protect itself and not to vicariously protect the absent party against a prejudicial judgment, this Court, in determining the possible prejudice to the party seeking relief, may properly consider that party's delay in seeking the joinder of the absent party. See Byrd Companies, Inc. v. Smith, 591 So. 2d 844 (Ala.1991) ("A defendant's delay and its self-serving purpose for raising the issue have also been held to be proper considerations in determining whether a judgment is proper in the absence of a particular party."). These defendants' extended delay in raising the joinder issue must be considered as a factor weighing against their argument. Although JMF and Horton assert that they did not realize Nancy Standeffer's status on the 1992 tax return until after the trial, we note that JMF and Horton had prepared the 1992 tax return for Dr. Standeffer and his wife Nancy.
We further note that at no time has Nancy Standeffer attempted to join the litigation in this case. In Geer Bros., Inc. v. Walker, 416 So. 2d 1045 (Ala.Civ.App.1982), the Court of Civil Appeals thoroughly addressed a similar issue where a bank had not joined an action, but had an interest in the action, within the meaning of Rule 19(a), because of a mortgage on a mobile home. That court stated:
416 So. 2d at 1050.
Nancy Standeffer has never attempted to protect her interest in the subject matter of this case, or to join this action, either at trial level or at the appellate level. Furthermore, it appears clear that JMF and Horton, in complaining of the failure to join Nancy Standeffer, are seeking "solely to protect [themselves] from a later suit." Geer Bros., Inc., supra. The record indicates that the possible prejudice to JMF and Horton that may result from Nancy Standeffer's absence as a party is remote at best. Under these circumstances, we conclude that the failure to join Nancy Standeffer in the action is not a sufficient reason to reverse the trial court's judgment.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
HOOPER, C.J., and SHORES and BUTTS, JJ., concur.
HOUSTON, J., concurs in the result.
HOUSTON, Justice (concurring in the result).
In Blumberg v. Touche-Ross & Co., 514 So. 2d 922, 925 (Ala.1987), I noted that there was "near universal agreement with the proposition that such liability [liability of accountants to their clients] may arise in either tort or contract for the negligent performance of an accounting service." In Blumberg, this Court held that an accountant is liable in contract for breaching an express (but probably not an implied) promise to use due care. 514 So. 2d at 927.
In this case, we are faced with the question of the creation of an accountant's duty to a client, the breach of which can be the basis for a negligence action. To me, it seems the duty arose from the relationship of the defendants and the plaintiffs. Because the jury found for the plaintiffs, our standard of review requires that we view the evidence in the light most favorable to the plaintiffs. *1069 When we do this, we must assume that the plaintiff Dr. Standeffer asked the defendants how he could receive tax-free disability insurance payments, that the defendants incorrectly informed Dr. Standeffer what he must do, that Dr. Standeffer did what the defendants told him to do, and that Dr. Standeffer was damaged by having to pay income taxes on his disability insurance payments. It seems to me that the Statute of Frauds defense is not a viable defense in the present case. Dr. Standeffer testified that he followed the defendants' advice, which was wrong, not that the defendants failed to do something that could not be done in a year. I would not hold that a duty created by contract would not be subject to a Statute of Frauds defense in a negligence action based upon a breach of that duty. (Trum v. Melvin Pierce Marine Coating, Inc., 562 So. 2d 235 (Ala.1990), did not address the issue whether a fraudulent misrepresentation regarding a contract that, under its terms, was not capable of being performed in one year was subject to the Statute of Frauds.) I do not believe that Pickard v. Turner, 592 So. 2d 1016 (Ala.1992), which involved a legal malpractice action, addressed the issue whether the Statute of Frauds is a defense to a negligence action based upon a breach of duty created by contract. I have found no Alabama case that addresses this issue, and I would wait to address this issue until it is necessary. | May 31, 1996 |
7797dd20-baf0-4e80-8345-af3673f2e4d7 | Johnson v. Garlock, Inc. | 682 So. 2d 25 | 1941913 | Alabama | Alabama Supreme Court | 682 So. 2d 25 (1996)
Willie L. JOHNSON, Melvin Jackson, Prince Johnson, and John R. Brown
v.
GARLOCK, INC.
1941913.
Supreme Court of Alabama.
July 12, 1996.
Rehearing Denied August 30, 1996.
Frederick T. Kuykendall III and Charlene P. Cullen of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, and David D. Shelby of Shelby & Cartee, Birmingham, for Appellants.
Edward B. McDonough, Jr. and Kevin D. Graham of Edward B. McDonough, Jr., P.C., Mobile, for Appellee.
Allan R. Wheeler of Starnes & Atchison, Birmingham, Peggy A. Whipple and J. Ford Little of Woolf, McClane, Bright, Allen & Carpenter, P.L.L.C., Knoxville, TN, for Amici Curiae Owens-Illinois, Inc. and W. R. Grace & Co.-Conn.
MADDOX, Justice.
This is an asbestos exposure case. The four plaintiffs were employed by the steel industry, and they allege that they were exposed to asbestos during or before 1978. They subsequently sued Garlock, Inc., alleging negligence and/or wantonness, breach of warranty, and liability under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD).
The plaintiff Willie Johnson alleges that he was exposed to asbestos or products containing asbestos while he was employed by United States Steel Corporation from 1946 to 1969. The plaintiff John R. Brown alleges that he was exposed to asbestos or products containing asbestos while he was employed by United States Pipe & Foundry Company from 1950 to September 6, 1978. Plaintiff *26 Melvin Jackson alleges that he was exposed to asbestos or products containing asbestos while he was employed by Woodward Iron Company from 1947 to 1977. The plaintiff Prince Johnson claims that he was exposed to asbestos or products containing asbestos while he was employed at United States Steel from 1929 to 1972.
None of the plaintiffs contends that he was exposed after 1979 to asbestos products manufactured by the defendant Garlock, Inc., or by anyone else. The plaintiffs allege that they were diagnosed with asbestos-related diseases in January and February 1992. They sued Garlock in April 1992.
Garlock moved for a summary judgment on the ground that the statutory limitations period had run. Garlock based its motion on this Court's holdings in Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.1979), and Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263 (Ala.1981). The trial court granted the motion and entered a summary judgment. The plaintiffs appeal, arguing that the limitations period had not run and that if Alabama law is interpreted to mean that the limitations period has run, then that interpretation would be an unconstitutional deprivation of their rights.
In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court used in determining whether the evidence presented a genuine issue of material fact and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990).
The issue before the Court is not novel. It was thoroughly addressed in Garrett, where this Court held that in a radiation exposure action the "statute of limitations begins to run in favor of the party liable from the time the cause of action `accrues.'" 368 So. 2d at 518-19. The Court said that it had "defined [the] `date of injury' for statute of limitations purposes to be the day on which the plaintiff was last exposed to the damages which injured her." 368 So. 2d at 520.[1]
On May 19, 1980, after this Court's decision in Garrett, the Legislature adopted § 6-2-30, Ala. Code 1975, which provided:
In Tyson, this Court addressed the contention that this statute applied retroactively to persons exposed to asbestos-related products before the enactment of the law and who discovered after the enactment that they had been harmed by the exposure. The Court unanimously held that § 6-2-30 was constitutional only "insofar as it establishes a discovery rule for the accrual of asbestos injury actions in Alabama and allows one year after discovery for the commencement of actions," *27 but that § 95 of the Alabama Constitution "prevents its application to claims time barred under § 6-2-30, Alabama Code of 1975, and Garrett v. Raytheon, supra, at the time of passage of Act No. 80-566." 399 So. 2d at 272. Article IV, § 95, of the Alabama Constitution states:
The Court stated that "[u]ntil May 19, 1980, § 6-2-30 of the Alabama Code 1975, and Garrett v. Raytheon, 368 So. 2d 516 (Ala. 1979), dictated the limitations period and date of accrual of causes of [action] for injury due to radiation and other insidious agents." 399 So. 2d at 268.
51 Am.Jur.2d Limitation of Actions § 44 (1970) (footnotes omitted, emphasis added [in Tyson]). See also, Dobson v. Quinn Freight Lines, 415 A.2d 814 (Me.1980); Hockman, `The Supreme Court and the Constitutionality of Retroactive Legislation,' 73 Harv. L.Rev. 692, 696 (1960); Smith, `Retroactive Laws and Vested Rights,' 5 Texas L.Rev. 231, 242-244, 248 (1927).
"In the closely related area of ex post facto legislation, cases and authorities are `in agreement that if the statutory period of the statute has fully run and the bar has once attached so that the defendant could not be prosecuted under the existing statute, the law cannot be changed by future legislation so as to extend the period of limitation as to past offenses, already barred. Such a law would violate the ex post facto clause.' Black, `Statutes of Limitation and the Ex Post Facto Clauses,' 26 Kentucky Law Journal 41, 42 (1937); Moore v. State, 43 N.J.L. 203 (1881); Falter v. United States, 23 F.2d 420 (1928).
"Although this area of the law is concerned with criminal matters, it is analogous to the cases before us. Our own case law recognizes this similarity. In Henry v. Thorpe, 14 Ala. 103 [(1848),] we stated that `statutes of limitation, it has often been held, do not enter into the contracts of parties, or affect their rights, until the presumption is complete.' Id., [14 Ala. at 112]. Once an action is barred by a statute of limitations in existence at the time of commencement of the action, rights vest in the limitations defense which cannot be destroyed by subsequent legislative act because § 95 of the Constitution restricts the legislative power to do so.
399 So. 2d at 268-70. The Court clearly held that § 6-2-30 cannot apply retroactively to actions already barred by the statute of limitations as interpreted and applied in Garrett. Thus, applying Garrett and Tyson to the facts of this case, we must hold that the plaintiffs' claims are time-barred.
Although the plaintiffs present the Court with the same fact situation it addressed in Tyson, they argue that the application of Tyson to their case violates their state and federal constitutional rights. We disagree. The holdings in Garrett and Tyson do not, as the plaintiffs suggest, eliminate a cause of action before it accrues. We, therefore, reaffirm our holdings in Garrett and Tyson.
AFFIRMED.
HOOPER, C.J., and ALMON, SHORES, HOUSTON, and COOK, JJ., concur.
INGRAM and BUTTS, JJ., dissent.
[1] The plaintiffs argue that the Court recognized in Barron v. CNA Ins. Co., 678 So. 2d 735 (Ala. 1996), that the Rule in Garrett should not apply to asbestos cases. However, we note that the exposures to asbestos in Barron were subject to the statute of limitations set forth in § 6-2-30, Ala. Code 1975, and the Court was explaining the rationale of the legislature in adopting the statute. No language in Barron suggests that the Court would apply § 6-2-30 retroactively to defendants whose right to the statute of limitations defense has already vested. | July 12, 1996 |
bdb4b0cc-05e3-479f-bff3-046e7d0dc975 | Lambert v. Mail Handlers Benefit Plan | 682 So. 2d 61 | 1950843 | Alabama | Alabama Supreme Court | 682 So. 2d 61 (1996)
Robert LAMBERT
v.
MAIL HANDLERS BENEFIT PLAN, et al.
1950843.
Supreme Court of Alabama.
July 26, 1996.
*62 John I. Cottle III of Bowles & Cottle, Tallassee, for Appellant.
Denis F. Gordon and Susan J. Pannell of Gordon & Barnett, Washington, DC, and Lawrence B. Clark of Lange, Simpson, Robinson & Somerville, Birmingham, for Mail Handlers Benefit Plan, National Postal Mail Handlers Union and Continental Assurance Company.
BUTTS, Justice.
Robert Lambert appeals from a summary judgment for the defendants in this fraud case.
The facts of the case as outlined in the record, the briefs, and the trial court order indicate the following. Before 1981, Robert Lambert, a Federal employee, chose to be insured under a contract with the Mail Handlers Benefit Plan ("MHBP"), one of a number of insurance plans available to Federal employees. In 1981 Lambert became disabled because of a work-related accident, and he retired in that year under the terms of the Civil Service Retirement Act. A Federal employee who retires under this Act because of a disability may continue to receive Federal disability benefits, including participation in his or her health insurance program, as long as he or she remains disabled. 5 U.S.C. § 8337. The disability is deemed to continue as long as the disabled annuitant does not earn a salary that exceeds 80% of the pre-disability salary. 5 U.S.C, § 8337(d). Thus, because of his disability, Lambert was able to continue his participation in the MHBP, even though he had gained employment in the private sector. Lambert's annual salary when he retired was $22,101; thus, in order for Lambert to remain eligible for the continuation of disability benefits, he could not earn more than $17,681 annually. 5 U.S.C. § 8337(d). If Lambert earned more than $17,681, his earning capacity would be deemed to have been restored and, thus, his disability benefits, including eligibility for participation in the MHBP, would terminate.
In order to establish continued disability, an annuitant must report his or her annual earnings to the United States Office of Personnel Management ("OPM"), which administers Federal employee benefit plans, including the MHBP. In 1992 Lambert reported to OPM that his 1991 income was $6,728. His employer, however, reported to the Social Security Administration that Lambert had earned $19,292 in 1991. When these two agencies cross-referenced their information, they discovered this discrepancy. OPM wrote Lambert on May 28, 1993, requesting that he provide verification of his 1991 earnings within 30 days and warned that if he failed to provide verification of earnings below the 80% limit, his benefits would be terminated retroactively to June 30, 1992. Lambert failed to respond within 30 days, and his benefits were terminated retroactively to June 30, 1992.
After June 30, 1992, but before the termination, Lambert and his family had made several claims for medical benefits under the MHBP. The Plan paid these claims when they were made. After the retroactive termination, however, MHBP determined that the payments on those claims were overpayments and that, under the terms of its contract, it was required to try and recover those payments from the doctors to whom they had been made. MHBP began contacting *63 the doctors, and it recovered some of the money. Lambert then began receiving letters and demands from the doctors for payment for the services. Lambert complained to his Congressman, who contacted MHBP. MHBP sent Lambert a second letter explaining that his insurance had been terminated retroactively.
On August 31, 1994, Lambert sued MHBP; the National Postal Mail Handlers Union, which sponsors the Plan; and Continental Assurance Company, which underwrites and administers the Plan (collectively "MHBP" hereinafter), alleging breach of contract, bad faith, and fraudulent misrepresentation by intentional suppression of material facts. The trial court granted MHBP's motion to remove the case to the United States District Court for the Middle District of Alabama. Lambert amended his complaint to claim that the defendants were equitably estopped from canceling his insurance. The defendants in their answer raised the defenses of Federal preemption and failure to exhaust administrative remedies. The district court subsequently determined that there was no basis for Federal jurisdiction and remanded the case.
The trial court granted the defendants' summary judgment motion. Lambert appeals from the summary judgment.
In reviewing a summary judgment, we utilize the same standard the trial court used "in determining whether the evidence... made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990).
Lambert first contends that in its dealings with him MHBP fraudulently suppressed information regarding the retroactivity provision of the policy, and he claims it was fundamentally unfair for MHBP to cancel his enrollment retroactively to the date his annuitant status should have terminated.
Suppression of a material fact that a party is under an obligation to communicate constitutes fraud. Ala.Code 1975, § 6-5-102. The elements of a cause of action for fraudulent suppression are: (1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury. See Gary v. Kirkland, 514 So. 2d 970 (Ala.1987); Wilson v. Brown, 496 So. 2d 756 (Ala.1986); Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985); and Cooper & Co. v. Bryant, 440 So. 2d 1016 (Ala.1983).
As Lambert points out in his brief, the obligation to disclose depends upon the relationship of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances. Berkel & Co. Contractors v. Providence Hospital, 454 So. 2d 496, 505 (Ala.1984). Each case must be individually evaluated to determine whether a duty to disclose exists. Id. After considering these factors, we conclude that the Plan did have a duty to disclose that retroactive termination was possible. However, the record shows that MHBP did indeed disclose the possibility of a retroactive application and, thus, did not conceal that it might seek to recover overpayment of benefits paid erroneously in good faith.
When Lambert became disabled and sought to retain his benefits, OPM provided him with brochures, along with his policy, that clearly stated the terms of the Plan. The brochures show that MHBP did not fraudulently suppress information indicating that it could and would terminate coverage if the employee was no longer eligible. The brochure *64 states that the OPM determines who is eligible for participation in the Plan, that the insured's eligibility to enroll in the Plan is dependent on the insured's continuation as an annuitant, and that it is the insured's responsibility to ensure that he or she is properly enrolled as an annuitant in the MHBP. It was Lambert's duty to disclose to OPM the correct income so that it could determine his eligibility for the Plan. The brochures stated that MHBP had no authority to enroll or disenroll a person without specific instructions from OPM, which made its determinations based on its eligibility requirements, including the 80% limit. Finally, the brochure states, in a section headed "Overpayments," that MHBP "will make reasonably diligent efforts to recover benefit payments made erroneously but in good faith." This statement gives notice that the Plan will attempt to recover overpayments made in error. The overpayments made by the Plan, which the Plan recovered after the retroactive termination, are overpayments adequately described in the brochures. Thus, we cannot conclude that the Plan violated any duty to disclose, because it did indeed disclose the material facts Lambert claims it hid.
Because Lambert did not advise OPM of his private employment when he obtained it, and did not report his private sector income as he was required to do, OPM was forced to remove him from its disability rolls retroactively to the time at which he exceeded the 80% limit, and to recover from him the disability he had been paid improperly. The retroactive application became necessary in this matter when Lambert failed to notify the OPM of his actual income, which was above the 80% limit. Had Lambert timely notified OPM that his income exceeded the 80% limit, his coverage would have ended at the time of the notification and no retroactive application of the termination would have been required. Because of the reasons set out above, we conclude that the Plan did not conceal the fact that it would seek repayment of overpayments.
Lambert next argues that, under the doctrine of equitable estoppel, MHBP is prohibited from retroactively canceling his insurance policy. To establish the essential elements of equitable estoppel, Lambert must show the following:
General Electric Credit Corp. v. Strickland Division of Rebel Lumber Co., 437 So. 2d 1240, 1243 (Ala.1983).
The fact situation here is similar to that presented in Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S. Ct. 2465, 110 L. Ed. 2d 387 (1990). In Richmond, the plaintiff, a former Navy welder, retired with a disability annuity under 5 U.S.C. § 8337, the same statute that is involved in Lambert's case. The plaintiff in Richmond exceeded the 80% limit of 5 U.S.C. § 8337(d) because he was given erroneous advice by a Government employee. Although the plaintiff lost his eligibility for disability benefits through no fault of his own, the United States Supreme Court held that the doctrine of equitable estoppel could not apply. Richmond, 496 U.S. at 434, 110 S. Ct. at 2476-77. Lambert's own actions led to the cancellation of his annuitant status and, thus, the cancellation of his benefits under the Plan. If Lambert had accurately reported his income, there would have been no retroactive application necessary, because he would have been terminated at the appropriate time.
Furthermore, Lambert was not ignorant of the facts that he claims were suppressed. This Court has stated, "A party invoking estoppel must have in good faith been ignorant of the true facts at the time a representation [was] made to him, and must have acted with diligence to learn the truth." Ivey v. Dixon Investment Co., 283 Ala. 590, *65 594, 219 So. 2d 639, 643 (1969). As noted above in our discussion of the fraud issue, Lambert was given notice of the possibility of retroactive collection of overpayments; thus, he knew of the facts he alleges were not communicated to him. Therefore, we must conclude that the doctrine of equitable estoppel cannot apply to this case.
The circuit court held that the doctrine of Federal preemption bars these claims; it held also that Lambert had failed to exhaust his administrative remedies and that his failure to do so bars these claims. Lambert argues that neither of these holdings was a valid basis for the summary judgment. We need not consider his arguments in this regard. The evidence shows that, as to the substance of Lambert's claims, there was no genuine issue of material fact and that MHBP was entitled to a judgment as a matter of law. See Rule 56, Ala.R.Civ.P. The summary judgment would have been proper even if the two holdings complained of were erroneous.
The judgment is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, INGRAM, and COOK, JJ., concur. | July 26, 1996 |
1bc4142b-47c1-4b62-bf21-65380f3a60b8 | Ex Parte Philadelphia Life Ins. Co. | 682 So. 2d 392 | 1950477 | Alabama | Alabama Supreme Court | 682 So. 2d 392 (1996)
Ex parte PHILADELPHIA LIFE INSURANCE COMPANY.
(In re Jerri Lynn HENSLEY, et al. v. PHILADELPHIA LIFE INSURANCE COMPANY and Linda Baird).
1950477.
Supreme Court of Alabama.
August 2, 1996.
*393 Ollie L. Blan, Jr., Thomas M. Eden III and Howard K. Glick of Spain & Gillon, Birmingham, and Thomas H. Young of Rogers, Young & Wollstein, Anniston, for Petitioner.
Frederick T. Kuykendall III, Joe R. Whatley, Jr., Peter H. Burke and Richard P. Rouco of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for Respondents.
INGRAM, Justice.
The defendant Philadelphia Life Insurance Company petitions this Court for a writ of mandamus directing the Calhoun Circuit Court to vacate its order granting the plaintiffs' motion to compel discovery and denying Philadelphia Life's motion for a protective order. Philadelphia Life contends that the trial court abused its discretion in compelling it to fully respond to the plaintiffs' discovery requests rather than limiting the scope of the requests and granting a protective order.
The writ of mandamus is an extraordinary writ available to provide relief for "a party [who] seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable." Rule 21(e)(4), Ala.R.App.P. In order for this Court to issue a writ of mandamus, the petitioner must show: "(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991).
The plaintiffs, Larry Hensley and Jerri Lynn Hensley, allege the following facts: The Hensleys, owners of Riteway Beauty Supply, Inc., were interested in purchasing for themselves and their employees life insurance policies that would provide a source of retirement income. They discussed their needs with Linda Baird, an agent for Philadelphia Life. The Hensleys allege that Baird represented to them that Philadelphia Life had life insurance policies that would provide them with a guaranteed amount of retirement income and with a death benefit. They also allege that Baird told them that Riteway would be entitled to a tax deduction for premiums it paid on behalf of its employees. Based upon this information, the Hensleys purchased the Philadelphia Life policies. The Hensleys were never able to obtain the appropriate tax forms from Baird in order to take the promised tax deductions. The Hensleys later discovered that they could not claim the tax deduction. They also discovered that the policies did not provide the cash values represented by Baird. Finally, they discovered that in regard to the Hensleys and one of the employees Baird had made false representations on the applications regarding whether they were tobacco smokers.[1]
*394 On December 14, 1994, the Hensleys sued Baird and Philadelphia Life. Along with the complaint, the Hensleys served Baird and Philadelphia Life with interrogatories and a request for production of documents. Baird and Philadelphia Life had 45 days to respond to the discovery, their responses being due in late January 1995. However, on January 16, 1995, Philadelphia Life removed the action to a Federal district court. On March 10, 1995, the Federal court, holding that it did not have subject matter jurisdiction, remanded the case to the Calhoun Circuit Court. On April 19, 1995, Philadelphia Life sought review by filing a "petition for extraordinary writ" with the Court of Appeals for the Eleventh Circuit. On April 26, 1995, the Eleventh Circuit denied that petition.
In the meantime, the date for Philadelphia Life's discovery responses had passed, with no responses being filed. In response to a letter from the Hensleys, Philadelphia Life hand delivered draft responses to the discovery requests, with objections to certain requests. Dissatisfied with Philadelphia Life's response, the Hensleys filed a motion to compel discovery. In turn, Philadelphia Life filed for a protective order. Over six months later, on November 14, 1995, the trial court granted the Hensleys' motion to compel and denied Philadelphia Life's motion for a protective order. The trial court also denied Philadelphia Life's "motion to reconsider."
During the six-month interim before the trial court granted the Hensleys' motion to compel, the Hensleys and Philadelphia Life reached a settlement concerning responses to the discovery requests. Philadelphia Life had objected to interrogatories 10, 11, and 13, and requests for production 12 and 13, contending that the information sought by them was irrelevant and not reasonably limited in scope, time, or geographical area. The Hensleys agreed to allow Philadelphia Life to limit its responses to Alabama and the past five years. However, the Hensleys made their settlement agreement contingent upon the trial court's denial of their motion to compel, because the Hensleys contended that Philadelphia Life had waived its right to object to the discovery requests by not objecting within the 45 days. As previously noted, the trial court granted the Hensleys' motion to compel and ordered Philadelphia Life to fully respond to the discovery requests.
The interrogatories and requests for production at issue read as follows:
Philadelphia Life contends that the trial court abused its discretion by not placing what it considered to be reasonable time and area limitations on the discovery requests, given that the Hensleys had previously agreed to accept such limitations, regardless of whether their agreement was contingent upon the trial court's ruling. The Hensleys contend that the trial court did not abuse its discretion in ordering Philadelphia Life to respond, because, they say, Philadelphia Life had waived any objections it might have to the interrogatories and requests for production.
The Alabama Rules of Civil Procedure are construed broadly to allow parties to obtain information needed in the preparation of their case. See Ex parte Asher, Inc., 569 So. 2d 733 (Ala.1990); Ex parte Clarke, 582 So. 2d 1064 (Ala.1991). The discovery process may lead to information helpful in choosing the strategy of a case. It may also steer a party's attorney to discover that, in fact, there was no actionable conduct and that the case may be dismissed. In its decisions regarding discovery, the trial court is vested with a considerable, although not unlimited, amount of discretion.
In Ex parte Stephens, 676 So. 2d 1307 (Ala. 1996), this Court stated that the first step in determining whether a court has abused its discretion is to determine the particularized need for discovery, in light of the nature of the claim. As noted in Stephens, this Court has held that a party alleging fraud is entitled to a broader range of discovery than is usually allowed, because of the greater difficulty in proving fraud. See also Ex parte Rowland, 669 So. 2d 125 (Ala.1995).
We cannot say that the trial court abused its discretion in refusing to impose time and area limitations on the discovery requested by the Hensleys. Under Rule 26(b)(1), Ala.R.Civ.P., parties are entitled to discover "any matter, not privileged, which is relevant to the subject matter involved in the pending action." Furthermore, that Rule provides that "[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Evidence of similar fraudulent acts is admissible to prove an alleged fraudulent scheme. Ex parte Georgia Casualty & Surety Co., 531 So. 2d 838 (Ala.1988). Furthermore, in order for this Court to issue the writ of mandamus, Philadelphia Life must show a clear legal right to the relief sought. See Alfab, supra. It has not made that showing.
The information sought by the Hensleys could lead to the discovery of admissible evidence. The trial court determined that the discovery requested was proper. The broad scope of discovery allowed by our rules necessarily requires that the trial court be vested with considerable discretion in ruling on such matters. Ex parte Georgia Casualty, supra.
Because we find no abuse of discretion, the petition for the writ of mandamus is due to be denied.
WRIT DENIED.
SHORES, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent.
HOOPER, Chief Justice (dissenting).
The trial court should have imposed limits on the plaintiffs' discovery requests for information regarding other policyholders of Philadelphia Life. The plaintiffs' request for information as to any past "pattern and practice" on the part of the defendant is extraordinarily broad. According to Rule 26(c), Ala. R. Civ. P., information sought through discovery must be limited to a reasonable geographical area, a reasonable time period, and a reasonable scope of inquiry.
*396 The trial court did not impose any geographic limits on discovery. "Alabama does not have the power ... to punish [a defendant] for conduct that was lawful where it occurred and that had no impact on Alabama or its residents. Nor may Alabama impose sanctions on [a defendant] in order to deter conduct that is lawful in other jurisdictions." BMW of North America, Inc. v. Gore, ___ U.S. ___, ___, 116 S. Ct. 1589, 1597-98, 134 L. Ed. 2d 809 (1996). The plaintiffs' discovery request should be limited to events that occurred in the State of Alabama within a certain limited time and should cover only claims and disputes that are similar to those involved in this case. I think this Court should issue a writ of mandamus directing the trial court to enter a protective order to prevent unreasonable discovery.
[1] From the limited information provided in the mandamus petition, we cannot tell what harm the Hensleys allegedly suffered because of this alleged misrepresentation. | August 2, 1996 |
634c9244-8f32-4500-8089-a4df7ac34a5b | Bush v. Ford Life Ins. Co. | 682 So. 2d 46 | 1931402 | Alabama | Alabama Supreme Court | 682 So. 2d 46 (1996)
John W. BUSH
v.
FORD LIFE INSURANCE COMPANY, et al.
1931402.
Supreme Court of Alabama.
July 19, 1996.
Jeffery C. Duffey, Montgomery, and Denise A. Simmons of Susan G. James and Associates, Montgomery, for Appellant.
*47 Gerald C. Swann, Jr. of Ball, Ball, Matthews & Novak, P.A., Montgomery, for Ford Life Ins. Co.
Steven F. Schmitt and John G. Smith of Schmitt & Harper, P.C., Tallassee, for Ben Atkinson Motors, Inc.
PER CURIAM.
This appeal, involving a dispute over a policy of credit life insurance, presents two questions:
1) When does a cause of action for negligent failure to procure insurance accrue?
2) Was the credit life insurer entitled to a summary judgment on the insured's bad-faith-failure-to-pay claim, on the basis that there was a debatable issue on the contract claim?
John W. Bush and his wife Alfa Sue Bush purchased a truck from Ben Atkinson Motors, a Ford Motor Company dealership, and financed it through Ford Motor Credit Corporation. The Bushes applied for credit life insurance through Ford Life Insurance Company (hereinafter "Ford Life"). Alfa Sue Bush died of a heart attack approximately one year after she and her husband had purchased the truck and had signed the credit life application.
Mr. Bush filed a claim with Ford Life, but Ford Life refused to honor it, on the ground that when they signed the application Mrs. Bush was not in good health, contrary to her representation on the application.
The credit life application includes a health statement, a portion of which reads as follows:
The plaintiff Mr. Bush admits that this statement was included on the credit life application; however, he testified that the only question the sales representative asked him and Mrs. Bush was "What do you consider your health to be?" and he says they replied that it was good. Ford Life conducted an investigation after Mrs. Bush's death and discovered that she had had a two-year history of heart problems.
Mr. Bush sued Ford Life Insurance Company, alleging breach of contract for its failure to pay on the policy and alleging the tort of bad faith failure to pay. He sued Ben Atkinson Motors in the same action, alleging negligent procurement of credit life insurance.
The trial court entered a summary judgment for Ben Atkinson on the negligent procurement claim, holding that that claim was barred by the statute of limitations. It also entered a summary judgment for Ford Life on the bad faith claim. Although this case involved other claims and other defendants, only these two claims are involved in this appeal.
The statute of limitations applicable to a negligence claim is two years. Ala.Code 1975, § 6-2-38. Alfa Sue Bush died on September 18, 1990. Mr. Bush sued Ben Atkinson Motors on December 11, 1992, more than two years after her death. Mr. Bush argued that the cause of action for negligent procurement did not accrue and, therefore, that the statutory limitations period did not begin to run on that claim, until he received notice on December 14, 1990, from Ford Life that his claim would not be honored. We agree with Mr. Bush that the cause of action for negligent procurement did not accrue until Ford Life notified him that it would not honor his claim. In a case of negligent procurement, a cause of action accrues when a loss that would trigger liability under the policy occurs. Hickox v. Stover, 551 So. 2d 259, 264 (Ala.1989). In Weninegar v. S.S. Steele & Co., 477 So. 2d 949, 956 (Ala.1985), the Weninegars filed a negligence action against an insurance agent for allowing a flood insurance policy to lapse. The Court held that no legal injury occurred until the Weninegars' house was flooded and the insurer refused to cover the loss.
Here, the event that triggered liability under the policy was the death of Mrs. Bush, followed by Ford Life's December 14, 1990, *48 refusal to honor Mr. Bush's claim. Mr. Bush filed his negligent procurement claim against Ben Atkinson on December 11, 1992, within the two years allowed by the statute of limitations.
As to the bad faith claim against Ford Life, Mr. Bush argues as follows:
The substance of Mr. Bush's argument is that Ford Life improperly created an "automatic debatable reason" and, because that reason was improperly created, he says, he should be able to maintain a bad faith claim. Although we understand Mr. Bush's argument, if we accepted it and determined that this was an "extraordinary" case, we believe that to do so would change the law of bad-faith-refusal-to-pay as established by this Court.
When this Court created the bad-faith tort in Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1, 7 (Ala.1981) it stated:
Later, in National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982), this Court held:
This Court has held that the plaintiff must go beyond a mere showing of nonpayment and prove bad faith nonpayment, a nonpayment without any reasonable ground for disputea failure to pay even though the insurer had no legal or factual defense to the claim. Bush v. Alabama Farm Bureau Mut. Casualty Ins. Co., 576 So. 2d 175 (Ala.1991). We hold that Mr. Bush failed to meet his burden of proof as to the bad faith claim.
In National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357 (Ala.1982), this Court emphasized the heavy burden a plaintiff must bear in a bad faith case:
419 So. 2d at 1362. Dutton also stated that "[w]hether an insurance company is justified in denying a claim under a policy must be judged by what was before it at the time the decision [was] made." Id. The Ford Life policy provided that Ford Life reserved the right to review the policyholder's medical records if he or she died within one year from the effective date of the policy.
Based on the foregoing, we reverse the summary judgment in favor of Ben Atkinson Motors on the negligent procurement claim, but we affirm the summary judgment in favor of Ford Life on the bad faith claim. The cause is remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
AS TO PART I:
SHORES, HOUSTON, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent.
AS TO PART II:
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, and COOK, JJ., concur.
KENNEDY, INGRAM, and BUTTS, JJ., dissent.
HOOPER, Chief Justice (concurring in part; dissenting in part).
I concur with the majority opinion insofar as it affirms the summary judgment in favor of Ford Life Insurance Company on the bad faith claim. However, I must respectfully dissent from the reversal of the summary judgment in favor of Ben Atkinson Motors on the negligent procurement claim.
The plaintiff filed this action after the two-year statutory limitations period had run as to the negligent procurement claim. The majority calculates the statute of limitations period as running from the date Ford Life denied Mr. Bush's claim. In that way, Mr. Bush meets the statutory period by three days. I think the limitations period began to run on the date of Mrs. Bush's death; measuring the two-year period from that date, I conclude that Mr. Bush's action was barred.
In Hickox v. Stover, 551 So. 2d 259, 264 (Ala.1989), this Court overruled prior cases holding that the statutory limitations period for negligent procurement actions begins to run on the date the insurer provides the unsatisfactory policy. Hickox held that negligent procurement claims accrue at the time of the loss, e.g., on the date of a flood that damages the house of an insured person. For claims involving life insurance, the time of loss is the date of death of the insured person. The cause of action in this case accrued at the time of the lossMrs. Bush's death.
The majority cites only two cases addressing negligent procurement. Hickox, supra, and Weninegar v. S.S. Steele & Co., 477 So. 2d 949 (Ala.1985). This Court held in Weninegar that a cause of action for negligent procurement accrues when a loss triggering liability occurs. 477 So. 2d at 956.
*50 Thus, under both Hickox and Weninegar, the cause of action for negligent procurement accrued when Mrs. Bush died. The majority states that this Court held in Weninegar "that no legal injury occurred until the Weninegars' house was flooded and the insurer refused to cover the loss." 682 So. 2d at 47. (Emphasis original.) I think the following quote from Weninegar more accurately states its holding: "[T]he cause of action accrues when a loss triggering liability under the lapsed policy occurs.... We believe this to be the proper rule and overrule [Moore v. United States Pipe & Foundry Co., 384 So. 2d 1108 (Ala.Civ.App.1980)], a case in which the Court of Civil Appeals used the date of policy lapse instead of the date of injury for determining the beginning of the limitations period, to the extent it conflicts with our holding in this case." 477 So. 2d at 956. (Citations omitted.) The majority today de facto overrules Hickox and Weninegar, without stating that it is making new precedent. If this Court wants to create new precedent, it should do so clearly and explicitly. Clarity today would prevent future confusion as to the correct precedent to be followed in cases like this one.
Nevertheless, I dissent from the holding reversing the judgment for Ben Atkinson Motors and overruling this Court's precedent. I would affirm that judgment.
MADDOX, Justice (concurring in part; dissenting in part).
I agree that the summary judgment in favor of Ford Life Insurance Company on the bad faith claim is due to be affirmed. However, I must respectfully dissent from the reversal of the summary judgment for Ben Atkinson Motors, because I disagree with the majority's resolution of the statute of limitations issue.
Although I understand Mr. Bush's argument that the trial court incorrectly entered the summary judgment against his negligence procurement claim against Ben Atkinson on the ground that the statute of limitations had run, I cannot agree with Mr. Bush's claim that the cause of action did not accrue until he received notice from Ford Life that his claim would not be honored.
I believe, as the defendant Ben Atkinson claims, that the applicable two-year statute of limitations (Ala.Code 1975, § 6-2-38) barred the plaintiff's negligent procurement claim. Alfa Sue Bush died on September 18, 1990, and Mr. Bush did not file this action against Atkinson until December 11, 1992, more than two years later. The event that triggered liability in this case was the loss that gave rise to liability under the policythat was the death of Mrs. Bush; therefore, I believe the statute of limitations barred the claim.
I note that this Court in Hickox v. Stover, 551 So. 2d 259, 264 (Ala.1989), held that a negligent procurement action does not accrue when the policy is delivered but when the loss that is insured against occurs. In the Hickox case, the insured's oil field equipment and inventory were destroyed by a lightning fire on June 12, 1984; this Court held that the statutory limitations period began to run on June 12, 1984, the date of the loss. In Weninegar v. S.S. Steele & Co., 477 So. 2d 949, 956 (Ala.1985), this Court held that a negligence claim did not accrue when the policy lapsed, but when a loss that would trigger liability under the policy occurred. Based on the Hickox rule, I conclude that the event that triggered liability in this case was the death of Mrs. Bush on September 18, 1990. Mr. Bush filed his action on December 11, 1992. That was too late; the claim is barred by the statute of limitations.
INGRAM, Justice (concurring in part; dissenting in part).
I concur in the reversal of the summary judgment for Ben Atkinson Motors on the negligent procurement claim. However, I must respectfully dissent from the affirmance of the summary judgment for Ford Life on the bad faith claim.
As to the bad faith claim, Mr. Bush argues that Ford Life, through the construction of its credit life insurance policy, established for itself a "debatable reason" that would defeat a bad faith claim by creating a fact issue on the breach of contract claim. Mr. Bush contends that Ford Life does this by requiring the applicant to give a subjective opinion as to the state of her own health. Mr. Bush *51 also argues that Ford Life does not provide any qualifications, guidance, or questionnaires to assist the applicant in understanding the term "good health." Thus, Bush argues, Ford Life attempts to give itself a fail-safe provision whereby it may contact physicians and obtain medical records to make its own determination of "good health" if the insured dies within one year of its issuing the policy. Based on this delayed inquiry into the health of the insured, Ford Life may then deny the claim. Mr. Bush maintains that questions of fact exist as to whether Mrs. Bush was in "good health" when she completed the application.
The majority correctly sets out the history of the tort of bad faith. However, the Court noted in National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357 (Ala.1982), that the standard to be applied in "normal" or "ordinary" bad faith cases allows room for a different standard to be applied in certain unusual or extraordinary cases.
In Thomas v. Principal Financial Group, 566 So. 2d 735, 743 (Ala.1990), the Court held that the factual circumstances of that case made it an extraordinary case in which it would not be appropriate to allow the insurer to obtain a judgment as a matter of law on the bad faith claim. In Thomas, Principal issued a life insurance policy to Barbara Thomas; it issued the policy through her employer, on a program insuring employees and their dependent children. Ms. Thomas's 21-year-old daughter attended cosmetology school in Mobile. The daughter became disabled and could not attend school because of ovarian cancer. She died of cancer at the age of 24. The policy provided for coverage of dependents only if they were less than 25 years of age and were attending school on a full-time basis. An agent for Principal denied the claim because the daughter was not attending school full time at the time of her death and therefore was not, Principal contended, a dependent eligible for coverage. The Court reversed a summary judgment for the insurer, holding that a fact question existed as to whether the daughter was a "dependent" under the policy at the time of her death and that this case was not the "normal" or "ordinary" case to which the "directed verdict on the contract claim" standard should be applied.
The facts of the case at hand clearly bring it within the "extraordinary circumstances" exception to the "directed verdict on the contract claim" standard. A fact question exists as to whether Mrs. Bush was in "good health" when she signed the good health statement. Once again, this is not the "normal" or "ordinary" case to which the "directed verdict on the contract claim" standard should be applied.
The purely subjective good health statement, as in so many other credit life policies, reads "to the best of my knowledge, I am in good health." A fact question exists as to whether Mrs. Bush, "to the best of [her] knowledge," was in good health at the time she signed the statement.
The record reveals that Mr. Bush testified that he and Mrs. Bush were asked by the sales representative only "What do you consider your health to be?" He stated in his deposition as follows:
Mrs. Bush died approximately five months after the credit life policy was issued. In accordance with the policy, Ford Life obtained copies of Mrs. Bush's medical records and took a statement from Mr. Bush. Even though the evidence revealed that Mrs. Bush had had a two-year history of heart problems and had been briefly hospitalized on four *52 occasions, the affidavit of her cardiologist, Dr. Thomas Wool, supported her "good health" claim. His affidavit stated:
(Emphasis added.)
I disagree with the majority and would hold that this case is not the "normal" or "ordinary" case to which the "directed verdict on the contract claim" standard should be applied. It would not be appropriate to allow Ford Life to obtain a judgment as a matter of law on the bad faith claim merely by the subjective wording of its policy, in which it creates a fact issue on the breach of contract claim. In other words, because a fact issue exists as to whether Mrs. Bush was in "good health" at the time she signed the good health statement, Ford Life may not avoid a bad faith claim based upon such a limited inquiry into the state of Mrs. Bush's health at the time she signed the statement. Therefore, I would reverse the summary judgment on the bad faith claim in favor of Ford Life.
This Court has noted the problems connected with the failure of an insurance company to investigate an applicant's health history at the time the application is made; see Miller v. Dobbs Mobile Bay, Inc., 661 So. 2d 203 (Ala.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 177, 133 L. Ed. 2d 117 (1995); and Huff v. United Ins. Co. of America, 674 So. 2d 21 (Ala.1995).
We stated in Miller v. Dobbs Mobile Bay, Inc., supra, quoting the Arkansas Supreme Court:
661 So. 2d at 206, quoting Ford Life Ins. Co. v. Jones, 262 Ark. 881, 886, 563 S.W.2d 399, 402 (1978).
We further stated in Miller v. Dobbs Mobile Bay, Inc., quoting the Mississippi Supreme Court,
661 So. 2d at 207, quoting Southern United Life Ins. Co. v. Caves, 481 So. 2d 764, 768 (Miss.1985).
I believe that the facts of this case demonstrate, once again, the need for a good faith investigation into an applicant's health before a company issues a policy, if the insurance company is to avoid subjecting itself to litigation over allegations of bad faith.
I would reverse Ford Life's summary judgment on the bad faith claim.
KENNEDY and BUTTS, JJ., concur. | July 19, 1996 |
c21b9f15-19c2-413e-99fd-4092e6ce2d3c | Ex Parte French | 687 So. 2d 205 | 1950426 | Alabama | Alabama Supreme Court | 687 So. 2d 205 (1996)
Ex parte Larry FRENCH.
(Re Larry French v. State).
1950426.
Supreme Court of Alabama.
June 14, 1996.
Raymond Johnson, Montgomery, for Petitioner.
Jeff Sessions, Atty. Gen., and Melissa G. Math, Asst. Atty. Gen., for Respondent.
SHORES, Justice.
We granted certiorari review in order to consider whether the trial court erred in *206 enhancing Larry French's sentence under the Habitual Felony Offender Act, Ala.Code 1975, § 13A-5-9(b)(1) and (2). See French v. State, 687 So. 2d 202 (Ala.Crim.App.1995). We conclude that it did.
The record shows that the trial court used the following prior felony convictions to enhance the defendant's sentence: a 1994 Georgia conviction for violating the Georgia Controlled Substances Act and a 1994 Georgia conviction for possession of a firearm during the commission of that first felony. The Court of Criminal Appeals held that there was no error in using either conviction for enhancement purposes, because, it said, "the record contains a certified copy of each conviction." 687 So. 2d at 205.
It appears that French's second Georgia felony conviction was pursuant to Ga.Code Ann. § 16-11-106. That statute requires a five-year minimum mandatory sentence for persons convicted of unlawful distribution of a controlled substance while armed with a firearm. That statute reads as follows:
Alabama law has no similar provision. Under Alabama law, a conviction in any other jurisdiction, at any time, for a criminal act punishable in the other jurisdiction by a sentence exceeding one year is not a felony conviction for purposes of § 13A-5-9 unless the act would have been punishable under Alabama's criminal laws on or after January 1, 1980, by a sentence exceeding one year. See Ala.R.Crim.P. 26.6(b)(3)(iv); and Gwynne v. State, 499 So. 2d 802, 809-10 (Ala. Crim.App.1986).
The Georgia conviction based on possession of a firearm should not have been used to enhance this defendant's sentence, because the conduct on which that conviction was based would not have constituted a felony in Alabama. Accordingly, we affirm the judgment of the Court of Criminal Appeals insofar as it affirmed the conviction, but we reverse insofar as it affirmed the sentence. We remand the case for the Court of Criminal Appeals to direct that the defendant be resentenced without consideration of the second Georgia conviction.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY, and COOK, JJ., concur. | June 14, 1996 |
db6ea3f8-85ee-4879-8f8c-9c6a5bbbd40c | Buckley v. Seymour | 679 So. 2d 220 | 1941125, 1941174 | Alabama | Alabama Supreme Court | 679 So. 2d 220 (1996)
Richard L. BUCKLEY[1]
v.
Richard SEYMOUR.
Richard D. SEYMOUR
v.
Richard BUCKLEY, Jr.
1941125, 1941174.
Supreme Court of Alabama.
May 17, 1996.
*221 Stephen A. Rowe and David W. Spurlock of Lange, Simpson, Robinson & Somerville, *222 Birmingham, for appellant/cross-appellee Buckley.
Albert L. Jordan and Algert S. Agricola, Jr. of Wallace, Jordan, Ratliff, Byers & Brandt, L.L.C., Birmingham, for appellee/cross-appellant Seymour (Attorney Agricola appeared on application for rehearing).
Davis Carr and Frank L. Parker, Jr. of Pierce, Carr, Alford, Ledyard & Latta, P.C., Mobile, for amicus curiae Business Council of Alabama, in support of Richard L. Buckley.
SHORES, Justice.
The opinion of February 2, 1996, is withdrawn and the following opinion is substituted therefor.
Richard L. Buckley, Jr., is the sole proprietor of a paintless dent removal business operating in Alabama and other states under the trade name "Press*A*Dent." Paintless dent removal ("PDR") is a process by which a skilled craftsman, using special tools and techniques, removes dents, dings, and creases from an automobile without performing any paint work. This process is in contrast to traditional automotive body repair methods that involve sanding, filling, and repainting.
On October 10, 1991, Buckley entered into an agreement ("the Agreement") with Richard Seymour in which Seymour agreed to perform services for Buckley in the PDR business under the terms set forth in the Agreement.
Under the terms of the Agreement, Buckley agreed to provide training to Seymour in the PDR process. Seymour agreed to learn the process and to do PDR work in a designated portion of Alabama. The Agreement contained the following confidentiality clause:
The Agreement also contained a noncompetition clause in which Seymour agreed not to compete with Buckley for two years after the termination of the business relationship. The Agreement recites that it is to be "governed by, construed and enforced in accordance with the laws of the State of Indiana."
The parties maintained a business relationship until February 1993, when Seymour notified Buckley that he was "terminating their agreement" effective March 28, 1993. Days later Seymour began his own business operation as "The Dent Man." Buckley sued Seymour on May 12, 1993, seeking a temporary restraining order and a permanent injunction enjoining Seymour from interfering with the business or contractual relationship between Buckley and his customers.
The trial court first granted a temporary restraining order, and then, after hearing testimony, issued a preliminary injunction restraining and enjoining Seymour from, among other things, "using or disclosing to competing entities of Mr. Buckley, the process of paintless dent removal as well as any confidential information or processes learned while associated with Mr. Buckley or from using the specialized operational methodologies of Mr. Buckley; [and] using the trade name Press*A*Dent."
Seymour appealed the preliminary injunction; this Court affirmed. Seymour v. Buckley, 628 So. 2d 554 (Ala.1993). After our decision in Seymour v. Buckley, Seymour counterclaimed, alleging that he had been fraudulently induced by Buckley into signing the Agreement.
*223 A jury trial was held January 9-13, 1995. The trial judge submitted the case to the jury on Buckley's contractual claims and on Seymour's counterclaim. The jury returned a general verdict in favor of Buckley on his complaint and against Seymour on his counterclaim. The jury awarded Buckley $3,388 for Seymour's breaching the noncompetition provisions of the Agreement. In addition, the trial judge submitted an interrogatory to the jury: "Is the Press*A*Dent paintless dent removal process a trade secret?" The jury answered the interrogatory in the negative. The trial court entered a judgment in accordance with the jury verdict. The trial court also granted Buckley a permanent injunction for the enforcement of the "noncompetition" provisions of the Agreement and made it effective for the period expiring two years from the date of the preliminary injunction, March 28, 1993. The permanent injunction restrained Seymour from "engaging in the business of paintless dent removal within the Alabama counties of Jefferson, Tuscaloosa, Walker, Blount, St. Clair and Shelby; and interfering with the business or contractual relationship between Mr. Buckley and his customers." Because the jury determined that Buckley's PDR process was not a trade secret, the trial court did not a issue a permanent injunction to compel Seymour to comply with the "nondisclosure" or "confidentiality" provisions of the Agreement. Pursuant to post-trial motions, the trial judge awarded Buckley attorney fees and expenses against Seymour in an amount exceeding $70,000.
Buckley appeals because, he says, he is entitled to a permanent injunction against Seymour under the "confidentiality" provisions of the Agreement or under the Indiana Uniform Trade Secrets Act, Indiana Code § 24-2-3-1 et seq. Seymour cross appeals, arguing that the public policy forbidding restraints of trade, embodied in Ala.Code 1975, § 8-1-1, precludes the enforcement of the noncompetition provisions of the Agreement. Additionally, Seymour argues that the trial court acted improperly in awarding attorney fees against him and that the award should be vacated and the cause remanded for findings of fact.
In Indiana, an employee who is entrusted with or who obtains trade secrets may make a valid covenant that prohibits him from the competitive use or disclosure of those trade secrets. Ackerman v. Kimball Int'l, Inc., 634 N.E.2d 778 (Ind.Ct.App.1994), vacated in part, adopted in part, 652 N.E.2d 507 (Ind.1995). See also Donahue v. Permacel Tape Corp., 234 Ind. 398, 403, 127 N.E.2d 235, 237 (1955). In cases in which employers have sought to enforce contractual provisions intended to protect trade secrets, Indiana cases have defined "trade secrets" as follows:
Eaton Corp. v. Appliance Valves Corp., 526 F. Supp. 1172, 1179 (N.D.Ind.1981), aff'd by unpublished order, 688 F.2d 842 (7th Cir. 1982), quoting Restatement of Torts, § 757, comment b (1939). "The characterization of information as a trade secret will also be denied if the plaintiff fails to show that the information could not have been learned by anyone skilled in the industry involved." Eaton Corp., supra at 1179. See also Eaton Corp., at 1179, quoting Packard Instrument Co. v. Reich, 89 Ill.App.3d 908, 45 Ill.Dec. 266, 272, 412 N.E.2d 617, 623 (1980) ("Matters which are generally known in the trade *224 cannot be made secret by being so labelled in an agreement").
Even in the absence of a restrictive covenant, Indiana Law prohibits a former employee from misappropriating and using trade secrets or confidential information acquired during employment for his or a competitor's benefit in a manner that is detrimental to the former employer. Ind.Code, § 24-2-3-2. See Prudential Ins. Co. of America v. Crouch, 606 F. Supp. 464 (S.D.Ind.1985); aff'd, 796 F.2d 477 (7th Cir. 1986); Woodward Ins., Inc. v. White, 437 N.E.2d 59 (Ind.1982). The Indiana Uniform Trade Secrets Act, Ind.Code, § 24-2-3-2, states:
Under our interpretation of Indiana contract law and the Indiana Uniform Trade Secrets Act, for Buckley's process to be protected it must not be of "general knowledge in the industry" or "readily ascertainable by proper means." Because the jury determined that Buckley's PDR process was not a trade secret, our review is limited to determining whether the evidence presented at the trial supports the jury's conclusion that the process was not a trade secret. If the evidence supports that conclusion, Buckley is not entitled to a permanent injunction.
We find sufficient evidence in the record to support the jury's finding that Buckley's paintless dent removal system was not a trade secret.
At trial, James Allan Williams testified that for five years he had been operating his own paintless dent removal business, "Pro Dent," which operated principally in Dallas, Texas. He said that he was not affiliated with Buckley or Press*A*Dent and that he had learned paintless dent removal from another paintless dent removal business named "Dent Doctors." Williams stated that there were other companies and franchises that provided the same service, namely "Dent Master," whose business was located two doors down from his own, and "Dent Wizard," "Dent Man," "Contemporary," and "Hail Raisers." He testified that there were over 50 providers of paintless dent removal in the area where he worked. Williams testified that in the course of his business he had removed "hundreds of thousands" of dents and that he had worked alongside workers from other paintless dent repair companies who were "doing the same thing." Williams testified that in 1991 the paintless dent removal technique was readily ascertainable to others in the automobile body industry. Williams also demonstrated PDR in the courtroom and explained the process as he progressed.
Buckley testified that he did not invent PDR himself, but that he used the processes of two other PDR companies, Dent Masters[2] and Dent Pro. He also admitted that he did not train his craftsmen internally, but, rather, contracted with the other PDR companies to train his employees.
Greg Hudson, who had worked for Buckley from August 1991 until September 1993, testified that he was trained by "Dent Masters," the same California paintless dent removal company that had trained Seymour. He testified that trainees from other paintless dent removal companies trained along with him, despite Buckley's representation to him that Buckley had an exclusive process. Hudson also testified that the tools used in the process were much like the "body picks" he had used when doing body work in a vocational high school.
Jeff Weston, another former employee of Buckley, testified that he had been trained in Pennsylvania by an organization called "Dent Pro" and that he had also trained with persons who were not associated with Richard Buckley or Press*A*Dent. He testified that *225 in PDR he used the same tools he had used to do ordinary automobile body work and that he had removed dents without painting even before he had become affiliated with Buckley.
Terry Koebe, the executive vice president of a paintless dent removal business called "Dent Wizard," testified on behalf of Buckley. He testified that Dent Wizard was the largest paintless dent removal business in the United States and Canada. He testified that his company was four of five years old and that competition had increased to the extent that 10 to 15 other companies provided PDR service, including Press*A*Dent. Koebe testified that, because of the growth of the paintless dent removal industry, other companies marketed paintless dent removal tools and that those tools were readily available. Although Koebe stated that Dent Wizard's paintless dent removal system was a "trade secret" and a process of his company, he also stated that the concept of paintless dent removal was commonly known in the industry.
During the trial, the court also received into evidence a Ford Motor Company training manual and a training videotape depicting paintless dent removal; the videotape was entitled "Cosmetic Paint and Surface Repairs." Those materials show a 1983 copyright date. Two other training videotapes depicting paintless dent removal were also introduced into evidence.
While other testimony at the trial was to the effect that Buckley's paintless dent removal system was a trade secret, the trade secret issue was for the jury, which determined that Buckley's process was not a trade secret. That conclusion is supported by the evidence. The trial court is vested with broad discretion in ruling on a request for injunctive relief. To establish that the denial of an injunction was an abuse of the trial court's discretion, one must show that the trial court committed clear and palpable error. See Alabama Power Co. v. Drummond, 559 So. 2d 158 (Ala.1990). Given the jury's finding on the trade secret issue, we find no abuse of discretion. As to the trade secret issue, we limit our holding to the facts of this casemost important among them being that Buckley testified that he did not develop the PDR process himself; that Seymour presented evidence indicating that Buckley's PDR process did not differ from processes used by other companies providing PDR services; and that Seymour presented PDR training manuals, PDR training videotapes, and PDR tools produced by companies that were not associated with Press*A*Dent.
On cross appeal, Seymour argues that the trial court improperly enforced the noncompetition provision of the Agreement. He argues that Alabama's public policy against restraints of trade, embodied in Ala.Code 1975, § 8-1-1, precluded the entry of any judgment enforcing the noncompetition provisions. Seymour appeals from the trial court's order granting a permanent injunction against a violation of the noncompetition clause; we conclude that this issue is moot. Seymour's noncompetition covenant was effective against him for a period of two years, measured from March 28, 1993, the date he terminated the Agreement. That period has expired. Any action by this Court now could have no effect. See Masonry Arts, Inc. v. Mobile County Commission, 628 So. 2d 334 (Ala.1993) ("an appeal will be dismissed as moot `if an event happening after hearing and decree in circuit court, but before appeal is taken, or pending appeal, makes determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief'"). See also Gross v. QMS, Inc., 669 So. 2d 839 (Ala.1995).
Seymour also appeals from the trial court's judgment awarding $3,388 for Seymour's breach of the noncompetition provisions of the Agreement. Seymour argues that the restrictive clause is void on its face, under § 8-1-1 Ala.Code, 1975, because, he says, he operated as an independent contractor and, he says, the exception to the general statutory rule against contracts of restraint applies only to "an agent, servant or employee." Section 8-1-1(b).
As stated above, the Agreement states that it is to be "governed by, construed and enforced in accordance with the *226 laws of the State of Indiana." However, the right of parties to a contract to choose the law governing their obligations is recognized by Alabama law only if the consequences of that election are not contrary to Alabama public policy. Blalock v. Perfect Subscription Co., 458 F. Supp. 123 (S.D.Ala.1978), affirmed, 599 F.2d 743 (5th Cir.1979); Hughes Associates, Inc. v. Printed Circuit Corp., 631 F. Supp. 851 (N.D.Ala.1986); Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502 (Ala. 1991).
Assuming, for the sake of argument, that Seymour was an independent contractor, we find that the noncompetition clause of the agreement was not an unlawful restraint of trade under § 8-1-1 because this Court is of the opinion that the restrictive covenant was merely a partial restraint of trade. See Gafnea v. Pasquale Food Co., 454 So. 2d 1366 (Ala.1984); Famex v. Century Ins. Services, Inc., 425 So. 2d 1053 (Ala.1982); Hughes Associates, Inc. v. Printed Circuit Corp., supra. Seymour was not prohibited from working in any other aspect of the automotive body repair business, including traditional automobile repair and reconditioning, so long as he did not perform the PDR process. In addition, we find that the covenant was reasonable and sufficiently limited. The trial court's judgment of $3,388 for Seymour's breach of the noncompetition provisions of the Agreement is affirmed.
Seymour argues that the trial court erred in awarding attorney fees and expenses against him in an amount exceeding $70,000 because, he says, this sum bears no relationship to the $3,388 award of damages for breach of the noncompetition provisions of the Agreement and because Buckley lost on the trade secret issue. Seymour asks this court to vacate the award and remand the cause to the trial court for findings of fact.
Following the jury trial in Buckley's favor (on the claim that Seymour had violated the noncompetition provisions), Buckley's attorneys moved for an award of expenses and attorney fees. Attached to the motion was an affidavit of Stephen Rowe, lead attorney for Buckley, which provided a summary of fees and expenses claimed. The affidavit listed the name and rate per hour of each person who had performed services in connection with the case, and a description of each service. Rowe's affidavit states that he charged Buckley $125 an hour for "partner time," between $80 and $100 an hour for "associate time," and $65 an hour for paralegal services. In the affidavit, Rowe stated that in seeking to uphold the agreement between the parties, it was necessary to obtain a temporary restraining order; to take depositions and engage in discovery; to defend an appeal of the temporary restraining order to this Court; to defend Seymour's filing of a bankruptcy petition and Seymour's claim in the bankruptcy court that the Agreement was "executory"; and to prosecute a week-long trial. At the trial court's hearing on the motion, two practicing attorneys, Mark White and Thad Long, testified in support of the motion. White testified that he had been practicing law more than 20 years; that he had served as a mediator or special master in the ascertainment of attorney fees in different types of litigation and that he had served as corporate in-house counsel responsible for determining whether claims for legal fees were reasonable. He testified that he was familiar with the fees attorneys charged in the Birmingham area for this type of litigation. White testified that he had reviewed the bills submitted to Buckley and had determined that the fee sought, $67,837.50 plus $3,700.95 in expenses, was reasonable. White testified that the services provided included, among other things, a hearing on the preliminary injunction, Seymour's appeal of the preliminary injunction to this Court, Seymour's bankruptcy proceedings, 10 depositions preceding trial, and a one-week trial. White testified that Rowe's hourly rate of $125 and the associates' rate of $80 to $100 an hour were below market rate.
Thad Long testified that he too was familiar with the fees customarily charged around Birmingham for similar legal services; he stated that the fees and expenses claimed were "very reasonable" for a case such as this one and were actually below the market rate. He stated that because of the nature of his own practice, he was familiar not only *227 with the hourly rates charged in a case like this one, but also with the cost of prosecuting an action like this one. Long testified that, in a case of this sort, where part of the relief sought is injunctive relief to prevent future damages, the amount of money damages awarded will bear no relationship to the attorney fees.
In Alabama,[3] "attorney fees are recoverable as part of the costs of an action only where authorized by statute, when provided in a contact, or by special equity, such as a proceeding where the efforts of an attorney create a fund out of which fees may be paid." Subway Restaurants, Inc. v. Madison Square Assocs., Ltd., 613 So. 2d 1255 (Ala.1993) (emphasis added.). The Agreement between Buckley and Seymour provided that "Buckley shall be entitled to recover monetary damages for any breach of this Agreement, as well as expenses of recovery, including reasonable attorneys fees."
In Peebles v. Miley, 439 So. 2d 137 (Ala. 1983), we set out the following 12 factors that the trial court should consider in setting an attorney fee: (1) the nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances. See Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740 (Ala.1988); Irons v. LeSueur, 487 So. 2d 1352 (Ala.1986); Talb, Inc. v. Dot Dot Corp., 559 So. 2d 1054 (Ala.1990); and Shirley v. Mazzone, 591 So. 2d 469 (Ala.1991). Although all of these criteria need not be applicable in a particular case, they are generally available for the trial court to consider in connection with each claim for an award of attorney fees. Graddick v. First Farmers & Merchants National Bank of Troy, 453 So. 2d 1305 (Ala.1984).
The issue of attorney fees was presented to the trial court on ore tenus evidence. Findings of a trial court based on ore tenus evidence are presumed correct, and a judgment based on such findings will not be disturbed on appeal unless they are palpably wrong, manifestly unjust, or without support from the evidence. Shearry v. Sanders, 621 So. 2d 1307 (Ala.1993). It appears from the record that the trial court on the hearing on the motion considered the 12 factors set out in Peebles and that at the hearing the trial court heard evidence concerning those factors. We see no error in the trial court's award, and we see no reason for the trial court to consider this issue further.
1941125ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
1941174ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; APPEAL DISMISSED AS TO SEYMOUR'S ARGUMENT REGARDING ENFORCEMENT OF THE INJUNCTION; OTHERWISE AFFIRMED.
MADDOX, KENNEDY, COOK, and BUTTS, JJ., concur.
[1] This party is referred to at various places in the record as Richard L. Buckley, Richard Buckley, Jr., and Richard L. Buckley, Jr. The other party is referred to sometimes as Richard Seymour and sometimes as Richard D. Seymour.
[2] Also referred to as Matteson, Inc.
[3] Although the Agreement states that any dispute is to be governed by Indiana law, both parties agree that Alabama law will determine whether attorney fees are recoverable in this case. Therefore, we will not address whether attorney fees would have been recoverable under Indiana law. | May 17, 1996 |
671bc31b-4668-4609-87e6-cc43c476849d | Patrick v. Union State Bank | 681 So. 2d 1364 | 1931430 | Alabama | Alabama Supreme Court | 681 So. 2d 1364 (1996)
Bridgette L. PATRICK
v.
UNION STATE BANK.
1931430.
Supreme Court of Alabama.
July 12, 1996.
*1365 Mark B. Polson and Emily J. Hurst of Polson & Robbins, P.C., Birmingham, for Appellant.
Michael C. Quillen and Emily Sides Bonds of Walston, Stabler, Wells, Anderson & Bains, Birmingham, for Appellee.
H. Hampton Boles and Teresa G. Minor of Balch & Bingham, Birmingham, for Amicus Curiae Alabama Bankers Association in support of appellee.
ALMON, Justice.
The opinion of August 4, 1995, is withdrawn and the following is substituted therefor.
Bridgette L. Patrick appeals from a summary judgment for Union State Bank in her action alleging that the bank negligently allowed an imposter to open a checking account in Ms. Patrick's name. The imposter wrote several worthless checks on the account, and as a result Ms. Patrick was subsequently arrested and incarcerated. The issues are whether the bank owed a duty to Ms. Patrick and whether Ms. Patrick met her evidentiary burden on the question of proximate cause.
In April 1990, Ms. Patrick applied for renewal of her Alabama driver's license and was issued a temporary license pending the issuance of a new permanent license. An Alabama temporary driver's license does not contain a picture of the licensee. Several weeks later, Ms. Patrick discovered that the temporary license and her Rich's department store credit card were missing from her wallet. Ms. Patrick reported to Rich's that the credit card was missing, and she subsequently received her permanent driver's license in the mail.
On May 10, 1990, a person calling herself "Bridgette Patrick," and using Ms. Patrick's temporary driver's license as identification, opened a checking account with a deposit of $100 at the Pell City branch of Union State Bank. Kim Abbott, the bank employee who opened the account, testified that the imposter stated that she had only one form of identification, that she had no permanent address because, she said, she was currently living at a shelter for abused women, and that she was trying to find a job and a place to live. Ms. Abbott also testified that she noticed that the imposter did not completely sign her last name on the account signature card; that she noticed that the signature on the card was different from the signature on Ms. Patrick's temporary driver's license; that she did not ask the imposter to verify the Social Security number by presenting a Social Security card; and that she did not attempt to verify either of the telephone numbers given to her by the imposter. Ms. Abbott did use a computerized banking information system called the "CHEX System" to determine whether "Bridgette Patrick" had any negative banking history; however, the system revealed no banking history at all on Bridgette Patrick.
With the checks given to her upon opening the account, the imposter proceeded to write checks totalling approximately $1,500 to merchants over a wide area of Jefferson and Shelby Counties. The first three checks exhausted the $100 deposit, and numerous "not sufficient funds" notices were then sent to the post office box address given by the imposter upon opening the account. The *1366 notices were returned to the bank marked "Attempted, Not Known." No notices were mailed to the address on Ms. Patrick's temporary driver's license. On May 31, 1990, the bank closed the account. The checks were returned as "not sufficient funds" items to the merchants, who had accepted the checks as payment for merchandise. The merchants then initiated proceedings that resulted in warrants being issued in 11 jurisdictions[1] for the arrest of Bridgette Patrick for issuing worthless checks.
Some months after Ms. Patrick discovered that her temporary license and Rich's card were missing, she received a notice from the City of Adamsville informing her that it had an outstanding warrant for her arrest. Ms. Patrick's father inquired as to the source of the warrant and was informed that Ms. Patrick had been charged with issuing worthless checks. Ms. Patrick then reported to the police in Adamsville, and her handwriting was compared to that found on the checks. The handwriting did not match, and the charges were dismissed. Subsequently, Ms. Patrick received a notice from the City of Birmingham informing her that it had issued a warrant for her arrest for issuing a worthless check. Ms. Patrick then reported to the police in Birmingham, and the charge was dismissed after her handwriting was compared to that found on the check. Ms. Patrick testified that she asked one of the Birmingham officials whether she needed a lawyer and was told no, because there did not appear to be any more checks. Ms. Patrick also testified that, at the time, she assumed that there must be another person by the name of "Bridgette Patrick."
In the summer of 1992, while Ms. Patrick was traveling through Montevallo with her mother and her six-month old baby, she was stopped by the Montevallo police for allegedly running a red light. After Ms. Patrick's driver's license was checked, she was arrested at the scene on the basis of outstanding warrants in Shelby County for issuing worthless checks. Although the officials in Shelby County concluded that Ms. Patrick's handwriting did not match the handwriting on the checks, she was held overnight because of outstanding warrants in other jurisdictions.
The following morning, Ms. Patrick was picked up at the Shelby County Jail by the City of Hoover on a warrant for issuing worthless checks. Ms. Patrick was arrested, photographed, fingerprinted, required to change into jail clothes, and held for 72 hours. Upon release by the City of Hoover, Ms. Patrick was taken into custody by the City of Fairfield on a charge of issuing worthless checks; she was incarcerated there for approximately two days and then released into the custody of the City of Midfield. Ms. Patrick was held by the City of Midfield for 24 hours on a warrant for issuing worthless checks; she was then released into the custody of the City of Homewood. Ms. Patrick was held overnight in Homewood and then released into the custody of her mother. Ms. Patrick's mother then had to take her immediately to the City of Leeds to sign a signature bond.
The total time of Ms. Patrick's incarceration came to approximately 10 consecutive days, and it was followed by numerous court appearances in the various jurisdictions. All of the charges against Ms. Patrick were eventually dismissed. The imposter has not been found.
Ms. Patrick brought an action against Union State Bank, alleging that the bank "negligently allowed a[n] unknown female, fraudulently posing as Plaintiff, to open a checking account ... [by] fail[ing] to demand proper identification from said person seeking to open the account and ... fail[ing] to verify information which had been obtained at the time the account was opened." The bank moved for a summary judgment, averring that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law. The circuit court granted the motion, holding that there were no material facts in dispute and that Ms. Patrick had not presented substantial evidence that would support a finding of the essential elements of duty and proximate cause.
"The existence of a duty to the plaintiff is fundamental to a negligence claim." Graveman v. Wind Drift Owners' Ass'n, Inc., 607 So. 2d 199, 203 (Ala.1992) (citing City of Bessemer v. Brantley, 258 Ala. 675, 65 So. 2d 160 (1953)). The bank's position is that in opening new accounts it has no legal duty to use due care to protect members of the general public from fraud perpetrated by a third party who might open a checking account as an imposter. In response to this argument, Ms. Patrick presented the affidavit of Timothy Gruber, who identified himself as a bank security expert. Based on his security background and five years' experience as the director of corporate security for First Alabama Bank in Birmingham, Mr. Gruber expressed the opinion that almost all banks require photographic identification and that banks do this not only for their own protection, but for the protection of others as well. Moreover, Mr. Gruber stated that banks should compare the signature on the potential customer's identification with the signature on the bank's signature card. According to Mr. Gruber, it follows that several factors should have alerted the bank teller that the person opening the account in Bridgette Patrick's name was, in fact, an imposter. This included the lack of photographic identification, the different signatures on the stolen driver's license and the signature card, the incomplete signature on the signature card, and the different addresses presented by the imposter.
The bank notes that it is a rule in Alabama that, absent a special relationship or special circumstances, a person has no duty to protect another from criminal acts of a third person.
This rule is most commonly applied in cases in which a business invitee or employee seeks to impose liability on a premises owner or employer for injuries or damage resulting from the criminal acts of a third party committed on the owner's or employer's premises. See Habich v. Crown Central Petroleum Corp., 642 So. 2d 699 (Ala.1994); Dailey v. Housing Authority for Birmingham Dist., 639 So. 2d 1343 (Ala.1994); Bailey v. Bruno's, Inc., 561 So. 2d 509 (Ala.1990); Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368 (Ala. 1986); Ortell v. Spencer Cos., 477 So. 2d 299 (Ala.1985); Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984); Latham v. Aronov Realty Co., 435 So. 2d 209 (Ala.1983); Berdeaux v. City National Bank, 424 So. 2d 594 (Ala. 1982); Parham v. Taylor, 402 So. 2d 884 (Ala. 1981) (citing 10 A.L.R.3d 619).[2] The rule has also been applied in cases in which a plaintiff sought to impose liability upon a psychiatrist for injuries resulting from criminal assault by the psychiatrist's patient where the patient was allegedly negligently diagnosed or negligently released from commitment by the psychiatrist. See Morton v. Prescott, 564 So. 2d 913 (Ala.1990); King v. Smith, 539 So. 2d 262 (Ala.1989).
The cases applying the rule address the question whether a defendant owes a duty to protect the plaintiff from violent physical criminal acts of a third person. In fact, the rule has been stated as being that "one has no duty to protect another from criminal attack by a third party." Roberson v. Allied Foundry & Machinery Co., 447 So. 2d 720, 723 (Ala.1984) (emphasis added); accord Gaskin v. Republic Steel Corp., 420 So. 2d 37 *1368 (Ala.1982) (setting out the test in Parham, supra, "for imposing liability on an employer for assaults by third parties on his employees") (emphasis added). Those cases applying the general rule have, for the most part, involved criminal assaults. The state's police power to prevent or punish such assaults involves the state's threat or use of force. Despite police protection and the deterrent value of such protection, citizens are victimized by criminal acts occurring in the home, in the workplace, and in public. See Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984). By recognizing that there is often no civil remedy in these cases, we acknowledge that the police powers belong to the state. Imposing a duty on defendants to protect members of the public from criminal assaults by third persons would undercut the state's monopoly on the use of force. Implicitly, we have rejected the imposition of a duty in these cases because such a duty would encourage citizens to resort to the use of force to deter criminal attacks. This case does not involve physical acts of violence or criminal assault.
An important distinction, aside from the absence of a criminal assault, is that this case involves whether the bank owes a legal duty to protect the plaintiff in the execution of an inherent component of the bank's business, whereas the previous cases applying the rule involve whether the defendant owed a duty to protect the plaintiff in a manner essentially unrelated, or at least not directly related, to the defendant's business or profession. There is such a close nexus between the negligent or wanton acts of the defendant in this case and the ultimate success of the criminal scheme that concerns associated with imposing a general duty to prevent criminal assaults are not implicated. Ordinarily, the successful commission of a criminal act, whether it be a violent criminal attack against the person or a nonviolent criminal act related to property, is not directly dependent upon acts or omissions of defendants typically protected by the general rule. The question whether a bank owes a duty to use due care in opening a checking account is fundamentally different from the question whether it owes a duty to employ a private security force sufficient to deter any threat of robbery. See Berdeaux, supra. The bank argues that the general rule should be applied in this case irrespective of the lack of a criminal assault, citing cases involving security companies that have been shielded from liability through application of the general rule. Although providing security is certainly an inherent component of a security company's business, such a company can not guarantee safety, and the successful criminal scheme is not wholly dependent on acts or omissions of the security company. On the other hand, the success of the imposter's scheme in this case was directly related to the bank teller's failure to properly verify the identification presented. The security company may attempt to prevent crime, within limits; here, the bank, through its negligence or wantonness, actually facilitated the crime.
Thus, we are persuaded that the categorization of the duty question as whether the defendant owes a duty to protect the plaintiff from the criminal acts of a third party is not accurate on the facts of this case. Although the general rule is often stated broadly, review of its application in our cases reveals that it is not controlling on the facts of this case. The basis of the rule, however, is applicable in the analysis of proximate cause, as discussed below.
Thus, the question whether the bank owed Ms. Patrick a duty to exercise due care in opening checking accounts should be analyzed according to traditional principles. Whether a legal duty exists is a question of law. Albert v. Hsu, 602 So. 2d 895 (Ala.1992) (citing Rose v. Miller & Co., 432 So. 2d 1237 (Ala.1983)). This Court has relied upon the following principles relating to the question of duty:
Smitherman v. McCafferty, 622 So. 2d 322, 324 (Ala.1993) (citations omitted). In addition to the key factor of foreseeability, this Court has recognized three related considerations in determining whether a duty exists: "the nature of the defendant's activity; ... the relationship between the parties; and... the type of injury or harm threatened." Morgan v. South Central Bell Telephone Co., 466 So. 2d 107, 114 (Ala.1985) (citing W. Prosser, Selected Topics in the Law of Torts, at 655 (1984)).
In a case upholding legislative regulation of the banking industry, this Court noted, generally:
Security Trust & Savings Bank v. Marion County Banking Co., 287 Ala. 507, 513, 253 So. 2d 17, 21 (1971). Of course, banks do not actually have a legal fiduciary duty to the public at large, see Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985) (noting that special circumstances are necessary to impose on a bank a fiduciary duty to disclose, because the relationship between a bank and its customer has been traditionally viewed as merely a creditor-debtor relationship), but the quotation from Security Trust illustrates the importance of, and the public trust placed in, the banking industry. Thus, the nature of the activity of a bank, such as Union State Bank, is such that some duty to the public in the exercise of the bank's business may be justifiably imposed.
The bank argues that there can be no duty because, it says, there was absolutely no relationship between the bank and Ms. Patrick. We disagree. The bank undeniably thought that it had a relationship with Ms. Patrick when it opened the account for, and gave checks to, an imposter; and the fact that the bank opened a checking account under the name "Bridgette Lashawn Patrick," under Ms. Patrick's Social Security number, and based solely upon the presentation of Ms. Patrick's temporary driver's license as identification, persuades us that there is some relationship between the parties. The fact that the relationship defies common categorization does not mean that there is no relationship.
The remaining question is whether the type of injury or harm threatened is such that the imposition of tort liability is appropriate. We conclude that the fraudulent scheme effectuated here, as well as the injury and harm it caused Ms. Patrick, was foreseeable to the extent that a duty may be imposed. The issuance of worthless checks is extremely likely to result from opening a checking account for, and giving checks to, an imposter: why else would a person open a checking account in another's name when the person has no relationship with the other? Arrest and incarceration of the person in whose name and Social Security number and upon whose identification such an account was opened are probable consequences of the issuance of worthless checks in such a situation. It is foreseeable to banks that failing to follow identification procedures will greatly increase the risk of fraud. It endangers the bank, the bank's customers, and the general public. Thus, as a matter of law, it is foreseeable, in terms of the question of duty, that the person in whose name and Social Security number and upon whose identification a checking account is opened may be injured or harmed by fraud if the bank does not employ commercially reasonable means to verify that the person opening the account and to whom checks are given is not an imposter.
Furthermore, the evidence in this case also could support a conclusion that the bank was in the best position to prevent the fraud that injured Ms. Patrick. First, while Ms. Patrick is responsible for keeping up with her driver's license, it is the bank that provided the imposter with the means to perpetrate the fraud, namely the checks. Second, although the bank seeks to imply that, after being notified of outstanding warrants for *1370 writing worthless checks in two jurisdictions, Ms. Patrick could have discovered and corrected the warrants in the other nine jurisdictions, Ms. Patrick testified that, at that time, she did not suspect the fraud that had actually occurred, but, rather, that she believed that there was another "Bridgette Patrick" with whom she had been confused, and, even if Ms. Patrick suspected the fraud, the task of discovering which of all of the possible jurisdictions had issued warrants for her arrest is quite onerous in comparison with the steps the bank could have taken to ensure that an account was not opened by, and checks given to, an imposterfor example, requiring photographic identification, or verifying any of the information given by the imposter, or at least ascertaining that the applicant's signature matches the signature on the identification.
While we recognize that strict observance of an identification policy does not provide a fool-proof mechanism to deter banking fraud, we can say with certainty that identification, properly verified at the point of contact, substantially reduces the risk of fraud. The utilization of established identification policies protects the bank, the bank's customers, and the general public from the very type of criminal activity in question today. Unlike scenarios involving criminal attacks, in this scenario it is the bank, not the state, that is in the best position to safely and effectively deter this type of conduct, and the bank can do it without assuming any undue burden. The bank argues that imposing such a duty would place an unbearable burden on the industry. The contention that requiring banks to actually follow identification policies would preclude countless numbers of Alabama citizens without picture identification from opening accounts and would prevent potential customers from opening accounts for weeks while the bank performs exhaustive background checks is without merit. The fact that banks now, as a matter of policy, request identification during face-to-face banking transactions undercuts the force of this argument. It is commercially reasonable for banks to verify the authenticity of signatures by comparison. See Commercial Credit Equip. Corp. v. First Alabama Bank, 636 F.2d 1051, 1055 (5th Cir.1981). Here, the bank teller had actual notice of a discrepancy between the handwriting on the temporary driver's license and the incomplete signature on the signature card, yet opened the account in spite of that discrepancy.
We find that the analysis and conclusion in Liberty Nat'l Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696 (1957), on the question of duty support our resolution of the issue here. In Liberty National, the father of a 2 ½ year-old child murdered by the child's aunt by marriage brought a negligence action against three insurers that had issued life insurance policies on the life of the child to the aunt by marriage, who did not have an insurable interest in the life of the child.[3] This Court characterized one of the issues presented as whether a life insurance company owes a "duty to use reasonable care not to issue a policy of life insurance in favor of a beneficiary who has no interest in the continuation of the life of the insured." 267 Ala. at 185, 100 So. 2d at 708. The Court held that such a duty exists, and noted:
267 Ala. at 186, 100 So. 2d at 708.
While the duty imposed in Liberty National was clearly based, in part, upon the fact that such insurance policies were void as against public policy, we note that the rationale of that public policy is that the injury or *1371 harm from the issuance of such policies is foreseeable, if not likely. See Helmetag's Adm'x v. Miller, 76 Ala. 183 (1884) (noting that "`such policies, if valid, ... furnish strong temptations to the party interested to bring about, if possible, the event insured against'"). Thus, it was foreseeable that the issuance of life insurance policies on the life of a person as to whom the beneficiary had no insurable interest was likely to provide a stimulus for murder, and, therefore, a company issuing a life insurance policy was held to owe a duty to use reasonable care to ascertain whether the intended beneficiary of the policy had an insurable interest in the life of the person to be insured. Obviously, the same line of analysis applies here: if it is foreseeable that the person in whose name and Social Security number and upon whose identification a checking account is opened could be arrested and detained as a result of the bank's opening the account without employing commercially reasonable means of verifying that the person opening the account and to whom the checks are given is not an imposter, then a duty may be imposed upon the bank.[4]
Thus, the evidence could support a conclusion that the type of injury or harm threatened was foreseeable and that the bank was in the best position to prevent the fraud, and therefore that the imposition of tort liability could be appropriate. Precedent from this Court also supports this conclusion. Therefore, we hold that a bank owes a duty of reasonable care to the person in whose name, and upon whose identification, an account is opened to ensure that the person opening the account and to whom checks are given is not an imposter.
The circuit court also based its summary judgment upon the issue of proximate cause. This Court has enunciated the standard for determining the issue of proximate cause in a case of this nature, as follows:
Liberty Nat'l Life Ins. Co. v. Weldon, 267 Ala. at 188, 100 So. 2d at 710 (quoting Restatement of the Law of Torts § 448); accord Thetford v. City of Clanton, 605 So. 2d 835, 840 (Ala.1992). We have determined that, as a matter of law, the fraudulent acts of the imposter here were foreseeable to the extent that a duty may be imposed on the bank. Therefore, the issue is whether Ms. Patrick presented substantial evidence creating a genuine issue of material fact as to whether the fraudulent acts of the imposter were foreseeable to the extent of supporting a finding of proximate cause, an issue for the trier of fact.
The bank argues that there is no genuine issue of material fact because Kim Abbott, the bank employee who opened the account, testified that she believed that the person opening the account was Bridgette Patrick, that she did not know that the temporary driver's license was stolen, and that she did not think, at the time the account was opened, that it was probable or likely that the person who opened the account would proceed to write worthless checks that would lead to the arrest and incarceration of the plaintiff. The bank's position is that, for it to have a duty, the employee opening the account must have had, subjectively, a specialized knowledge of the probability or likelihood that conduct is occurring that could endanger the plaintiff, and that, unless the employee had such knowledge, the act of the imposter was a superseding cause.
*1372 The bank's argument is without merit. The standard of foreseeability, as it applies to the question of proximate cause in this case, is whether the bank "should have realized the likelihood" that a situation that afforded an opportunity for an imposter to write worthless checks that would lead to the arrest and incarceration of the plaintiff might be created by the bank's opening a checking account for an individual based solely on the presentation of a temporary driver's license for identification and without verifying any of the information given. The standard is objective, and, while Ms. Abbott's testimony may be relevant, it is not controlling; Ms. Patrick's cause of action is against the bank itself.
In opposition to the bank's motion for summary judgment, Ms. Patrick presented the deposition testimony of Union State Bank's data processing operations officer, who testified that there is concern within the banking industry that persons not properly identified might use stolen identification to open a checking account and proceed to pass fraudulent checks. She also presented the affidavit of Timothy Gruber, offered as that of a bank security expert, who stated, and supported, his conclusions that the bank knew of the existence of widespread fraud against the banking industry and that the bank should have been aware of the possibility that someone would impersonate another in order to open a fraudulent account in the other's name. In particular, Mr. Gruber stated that several factors should have alerted the bank teller that the person opening the account in Bridgette Patrick's name was an imposter. We conclude that Ms. Patrick submitted substantial evidence creating a genuine issue of material fact as to whether the fraudulent acts of the imposter were foreseeable to the extent of supporting a finding of proximate cause.
Because we have determined that, as a matter of law, the bank owed a duty and because Ms. Patrick met her evidentiary burden on the issue of proximate cause, the circuit court erred in entering the summary judgment for the bank.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.
HOOPER, C.J., and SHORES, KENNEDY, and COOK, JJ., concur.
BUTTS, J., concurs in the result.
MADDOX and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
In the absence of a special relationship or special circumstances, a defendant has no duty to protect a plaintiff from the criminal acts of a third person. N.J. v. Greater Emanuel Temple Holiness Church, 611 So. 2d 1036 (Ala.1992); Young v. Huntsville Hospital, 595 So. 2d 1386 (Ala.1992); Morton v. Prescott, 564 So. 2d 913 (Ala.1990); Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984); Roberson v. Allied Foundry & Machinery Co., 447 So. 2d 720 (Ala.1984).
In this case, no relationship existed between Union State Bank and Bridgette Patrick. Thus, there is necessarily no "special relationship" that would give rise to a duty to protect Ms. Patrick from the criminal acts of another.
Under the "special circumstances" exception, one may owe a duty of care, but that duty does not arise unless the person "knew or had reason to know of a probability of conduct by third persons that would endanger the plaintiff." Saccuzzo v. Krystal Co., 646 So. 2d 595 (Ala.1994). There is no evidence that Union State Bank foresaw the criminal activity of the person who opened the account in Ms. Patrick's name. Whether a legal duty exists is a question of law for the courts. Albert v. Hsu, 602 So. 2d 895 (Ala. 1992). In my opinion, under the undisputed facts in this case, the trial court correctly concluded that, as a matter of law, Union State Bank owed no legal duty to Ms. Patrick.
On the issue of proximate cause, I cite only Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), for the proposition that even one who is negligent is liable only for the harm or injury within the orbit of foreseeability. Under this Court's holding today, banks are now required to foresee criminal acts in all banking transactions. To use *1373 Palsgraf as an analogy, I fear that the majority opinion in this case will be like a dropped bundle of fireworks that may throw down the scales of justice and injure those most in need of compassion from the banking system.
MADDOX, J., concurs.
[1] Jefferson and Shelby Counties, and the cities of Adamsville, Bessemer, Birmingham, Fairfield, Gardendale, Homewood, Hoover, Leeds, and Midfield issued such warrants.
[2] The "special relationship or special circumstances" exceptions to the rule have also developed in premises liability cases. The "special relationship" exception was applied in Young v. Huntsville Hospital, 595 So. 2d 1386 (Ala.1992), wherein this Court held that a hospital owes a duty to an anesthetized or sedated patient to protect the patient from the criminal acts of a third party. The Court's holding was based on the fact that the anesthetized or sedated plaintiff was "unable, or less able, to protect herself from an assault," and was, therefore, "dependent" upon the hospital. 595 So. 2d at 1388, 1389. This Court has also found that there are "special circumstances" where a premises owner or employer "possessed actual or constructive knowledge that criminal activity which could endanger an invitee [or employee] was a probability." Moye, 499 So. 2d at 1371 (quoting Ortell, 477 So.2d at 299); accord Henley, supra; Stripling v. Armbrester, 451 So. 2d 789 (Ala.1984). The key to the "specialized knowledge" exception is foreseeability, and this Court has adopted an objective standard for foreseeability where the "number and frequency of prior criminal acts at the place where the injury occurred are used in determining whether a particular criminal act was reasonably foreseeable." Moye, 499 So. 2d at 1372.
[3] The Court summarized two counts of the complaint as follows:
"Counts 3 and 6 alleg[e] that the acts of the defendants placed the insured child in a zone of danger, with unreasonable risk of harm to her and that the defendants in issuing the alleged illegal contracts of insurance knew, or by the exercise of reasonable diligence should have known, that the beneficiary, Mrs. Dennison, had no insurable interest in the life of the insured."
267 Ala. at 178, 100 So. 2d at 700.
[4] We note that the Court held in Liberty National, in addressing the issue of proximate cause, that actionable negligence may be predicated upon foreseeable intervening criminal acts, 267 Ala. at 188, 100 So. 2d at 710-11, but did not apply or cite the rule now broadly stated as "absent a special relationship or special circumstances, a person has no duty to protect another from criminal acts of a third person." Accord Thetford v. City of Clanton, 605 So. 2d 835 (Ala.1992). | July 12, 1996 |
474239f1-8ced-4b4b-8169-6332f05a8c4c | State v. Hill | 690 So. 2d 1201 | 1951365 | Alabama | Alabama Supreme Court | 690 So. 2d 1201 (1996)
Ex parte State of Alabama.
Re STATE of Alabama
v.
Charlie HILL.
1951365.
Supreme Court of Alabama.
November 1, 1996.
Jeff Sessions, Atty. Gen., and John J. Park, Jr., Asst. Atty. Gen., for Petitioner.
Joseph McNamee Tucker, Lafayette, for Respondent.
SHORES, Justice.
We granted the State's petition for certiorari review to determine whether a police officer was justified in conducting an investigatory stop of an automobile based on an informant's tip that two named suspects had been selling crack cocaine from the vehicle approximately two hours earlier. The Court of Criminal Appeals, with an unpublished memorandum, held that the stop violated the Fourth Amendment as applied to the states through the Due Process Clause of the Fourteenth Amendment and, therefore, that the evidence should have been suppressed. State v. Hill, 683 So. 2d 1074 (Ala. Crim.App.1996) (table). We conclude that the stop in this case was consistent with the *1202 principles of the Fourth Amendment. We reverse and remand.
Charlie Hill was indicted by the Grand Jury of Chambers County on one count of possession of cocaine and one count of possession of marijuana, in violation of §§ 13A-12-212 and 13A-12-214, Ala.Code 1975, respectively. Arguing that the police had found the drugs that formed the basis for the charges only as a result of an illegal seizure, Hill moved to suppress the evidence.
At the hearing on the motion to suppress, Jerome Bailey, a narcotics investigator for the Chambers County Sheriff's Department, was the only witness to testify. He stated that since November 1994, he and the Lafayette Police Department had received information regarding illegal activities by Hill although he did not specify the sources. Bailey testified that on the evening of February 24, 1995, a confidential informant told him that Hill was selling crack cocaine "from a blue Hyundai that was tinted down from the front row at Hilltop Apartments, here in Lafayette." The informant told Bailey that Hill was in the company of a man named Traco Heard and that the crack cocaine was in a plastic bag in Hill's right front pocket. Bailey testified that the informant had previously furnished information that had led to "probably 8 or 9 arrests. It could have been a little less." Approximately three days earlier, three other people, who used drugs and who had purchased crack cocaine in the past, told Bailey that Hill had offered to sell them "a 50-dollar rock." The record is silent regarding the past reliability of these three people or the circumstances under which they made their accusations.
After receiving information from his confidential informant, Bailey drove toward Hilltop Apartments. While Bailey was en route, the Lafayette Police Department received a report of a shooting, which appears to have also occurred somewhere at Hilltop Apartments. Because he was already in the area, Bailey broke off to assist the other officers on the call. Later, when Bailey reached the location at the apartments where Hill was supposedly selling crack cocaine, the blue Hyundai automobile was gone. Bailey's informant, however, was still at Hilltop Apartments. He told Bailey that the Hyundai was "going down by Southside" or "by Southside Elementary School." Bailey proceeded to that area, but his attempts to locate the vehicle there were fruitless.
In the early morning of February 25, about two hours after the contact with his informant at the apartments, Bailey was at a Chevron gasoline station in downtown Lafayette. There he saw a blue Hyundai with tinted windows "coming through Lafayette, headed toward Lafayette Street, North." Bailey testified that although he knew both Hill and Heard on sight, he could not discern the identity or number of people who were in the Hyundai when it went by, because the windows were darkly tinted. However, he also stated that he "recogniz[ed] the car immediately as being that of Hill." Bailey pulled the blue Hyundai over for an investigatory stop. He had not observed any traffic violations, and he acknowledged that the sole basis upon which he decided to stop Hill's car was the information furnished to him by the informant and the earlier complaints from the three other people.
Bailey testified that once he approached the automobile, he recognized Charlie Hill as the driver and Traco Heard as the passenger. When Bailey asked Hill for his driver's license, he smelled burning marijuana coming from inside the car. Bailey asked Hill to step out of the car and told him about the reports that he had been selling crack cocaine. During this conversation, Bailey smelled marijuana on Hill's breath.
Bailey then asked Hill for permission to search the car. Hill told him to go ahead. In the glove compartment, Bailey found a plastic bag containing four rocks of crack cocaine and a plastic bag containing marijuana. Hill was arrested and given his Miranda rights.
At the suppression hearing, Hill conceded that there might possibly have been grounds to stop and investigate him if police, acting on the tip, had found the blue Hyundai at the Hilltop Apartments as indicated by the informant. But he argued that the justification no longer existed at the time of the actual stop, because approximately two hours had *1203 elapsed since Bailey last spoke with his informant and the stop occurred randomly at a location the informant had never specified. The court agreed and held that the marijuana and crack cocaine were due to be suppressed on the basis that the police officer had lacked the requisite grounds to conduct the initial investigatory stop that directly led to the seizure of the evidence. From the transcript of the hearing, it appears that the trial court believed that the State was required to show that the officer possessed a reasonable suspicion that Hill was engaged in ongoing or imminent criminal activity when the stop was made and that the court was also concerned about police overreaching.[1]
The State appealed the suppression ruling, under Rule 15.7(a)(1), Ala.R.Crim.P. The Court of Criminal Appeals affirmed. Its unpublished memorandum would suggest that the Court of Criminal Appeals agreed that the stop of the vehicle was not justified because the police did not have sufficient reason to believe that the car was currently being used in an illegal endeavor. The Court of Criminal Appeals stated, in pertinent part, "The officer who stopped the appellee's vehicle did not have reasonable suspicion to believe that the occupants of the car were engaged in criminal activity." Thus, the Court of Criminal Appeals agreed that the evidence was illegally seized and therefore had to be suppressed. We disagree.
As a preliminary matter, we note that there has been some debate regarding the applicable standard of appellate review. In its unpublished memorandum, the Court of Criminal Appeals showed great deference to the trial court's decision to suppress the evidence of the cocaine and marijuana. It stated:
The State contends that the deference of the Court of Criminal Appeals to the judgment of the trial court was unwarranted. It claims that an appellate court should review de novo the trial court's finding that "reasonable suspicion" was lacking, because the facts in the case are not in dispute. We agree.
The trial judge made his ruling following a hearing at which he heard oral testimony only from Officer Bailey. We stated in Ex parte Agee, 669 So. 2d 102 (Ala.1995):
669 So. 2d at 104. "Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts." Stiles v. Brown, 380 So. 2d 792, 794 (Ala.1980) (citations omitted). The trial judge's ruling in this case was based upon his interpretation of the term "reasonable suspicion" *1204 as applied to an undisputed set of facts; the proper interpretation is a question of law.
Hill counters with the argument that some facts are disputed, and he argues that the judge's assessment of credibility was a key factor in his decision to suppress. It is true that, absent clear error, the trial court's credibility choices on issues of fact at suppression hearings are binding on this Court. Powell v. State, 624 So. 2d 220 (Ala.Cr.App. 1993). However, Hill has not indicated what facts are in dispute. He presented no evidence at the hearing, and there was no evidence that conflicts with or tends to undermine the testimony given by Bailey. Hill also adopted the statement of facts as set out in the State's brief, under Rule 39(k), Ala. R.App.P, adding only that the car was actually owned by Hill's brother and that when it appeared that Heard might attempt to flee Bailey told Heard that he had a police dog in his vehicle, although Bailey had no such dog. But these two facts are not relevant to the question whether the officer had a "reasonable suspicion" at the time he stopped the car. Thus, we review de novo the trial court's ruling on the issue and the judgment of the Court of Criminal Appeals. Ex parte Agee, supra.
The Fourth Amendment to the United States Constitution prohibits all seizures "including ... vehicles" without justification, including "brief authoritative detentions of vehicles and occupants for questioning." Ex parte Yeung, 489 So. 2d 1106 (Ala.1986). In Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880-81, 20 L. Ed. 2d 889 (1968), the Supreme Court of the United States held that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." This same rationale also applies to stops of moving automobiles. See United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); Ex parte Carpenter, 592 So. 2d 627 (Ala.1991). Under Terry, a stop may be made on the basis of reasonable suspicion, which is a less demanding standard than probable cause; it may be satisfied by a lesser quantity or content of information or less reliable information than would be required for a finding of probable cause. Atwell v. State, 594 So. 2d 202 (Ala.Cr.App.1991), cert. denied sub nom. Inabinett v. State, 594 So. 2d 214 (Ala.1992), citing Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990).
Information provided by a reliable informant can provide the reasonable suspicion required to justify a Terry stop. Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). In Alabama v. White, supra, the United States Supreme Court recognized that the same considerations relevant in determining whether an informant's tip gives rise to probable cause are also "relevant in the reasonable-suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard." White, 496 U.S. at 328-29, 110 S. Ct. at 2415. Under Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), in order for an informant's tip to form the basis of a probable cause finding the prosecution had to satisfy a two-pronged test of proving (1) an informant's "veracity" or "reliability" and (2) the informant's "basis of knowledge." See, e.g., Ex parte Meeks, 434 So. 2d 844 (Ala.1983); Knight v. State, 346 So. 2d 478 (Ala.Cr.App.1977), cert. denied, 346 So. 2d 483 (Ala.1977); see also H. Maddox, Alabama Rules of Criminal Procedure § 3.9 (1990). But in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the Supreme Court adopted a more flexible "totality of the circumstances" approach, under which an informant's "veracity" or "reliability," and "basis of knowledge" are highly relevant factors in determining whether probable cause exists, allowing consideration of other factors, such as corroboration by independent police work. In addition, under Gates, "a deficiency in one [of the two Spinelli factors, `veracity' or `reliability,' and `basis of knowledge,'] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." 462 *1205 U.S. at 233, 103 S. Ct. at 2329. See also Ex parte Carpenter, supra.
Contrary to the position apparently taken by both the trial court and the Court of Criminal Appeals, it is not necessary for police to reasonably suspect that a person is currently engaging in criminal activity in order to make an investigatory stop to ask questions or check identification. In United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985), the United States Supreme Court held, "[I]f police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion." 469 U.S. at 229, 105 S. Ct. at 680 (emphasis added). See also A.W.M. v. State, 627 So. 2d 1148 (Ala.Cr.App.1993); Powell v. State, 548 So. 2d 590 (Ala.Cr.App.1988) aff.; Cotton v. State, 481 So. 2d 413 (Ala.Cr.App.1985). In Hensley, an informant passed along to a St. Bernard, Ohio, police officer information indicating that Hensley had driven the getaway car in the robbery of a local tavern that had occurred six days earlier. About five miles away, the police department in Covington, Kentucky, some of whose members were familiar with Hensley, received the "wanted flyer" that was based upon the informant's tip. About 12 days after the robbery, a Covington officer who had seen the flyer reported that he recognized Hensley in the driver's seat of a white Cadillac convertible. A second Covington officer heard this report and pulled the automobile over for an investigatory stop a short time later. He asked the two occupants to exit the automobile. The officer saw a revolver in plain view protruding from under the passenger's seat, and a subsequent search of the car yielded two more weapons. 469 U.S. at 223-25, 105 S. Ct. at 677-78. Hensley argued that the weapons evidence should have been suppressed because, he argued, the Covington police had impermissibly stopped him in violation of the Fourth Amendment. The Supreme Court disagreed, concluding that the stop was lawful because the police had had probable cause, based upon the informant's reliable tip, to believe that Hensley was involved in the prior armed robbery. 469 U.S. at 233-34, 105 S. Ct. at 683. The Court further reasoned,
469 U.S. at 234, 105 S. Ct. at 683.
In McCoy v. State, 651 So. 2d 1149 (Ala.Cr. App.1994), the Court of Criminal Appeals applied these principles in a case that factually is very similar to this one.[2] In McCoy, the Court upheld the stop of an automobile on the basis of information communicated by other police officers and tips from anonymous concerned citizens and a confidential informant who had proved reliable on two previous occasions. Within the 72 hours before the traffic stop, these sources had advised the investigating officer that two named suspects had sold crack cocaine from a white Ford Tempo automobile with Georgia plates in the parking lot of a supermarket on at least two occasions in the preceding 10 days or so. The officer was also alerted that these suspects were driving to an area each morning and afternoon to pick up more drugs. He saw the vehicle that had been described to him, pulled it over for a Terry stop, and subsequently found crack cocaine on the defendant's person. While it does not appear that the police possessed knowledge that the suspects were on a "drug run" at the time, the Court of Criminal Appeals upheld the stop, recognizing that "`[t]he standard for allowing a Terry stop is whether there is a reasonable suspicion that "the person being stopped has engaged in some type of criminal activity."'" 651 So. 2d at 1150 (citation omitted) (emphasis added).
*1206 At the outset, we note that here we address only whether the initial investigatory stop of Hill's vehicle was lawful under the Fourth Amendment. The separate issue whether the officer's subsequent full search of the automobile was permissible was not ruled upon below and, therefore, is not properly before this Court.
We conclude that the information in Bailey's possession clearly supported a reasonable suspicion that Hill had sold crack cocaine out of the blue Hyundai that same night at Hilltop Apartments. Under Alabama law, such conduct, if proven, would constitute unlawful distribution of a controlled substance, a Class B felony. Ala. Code 1975, § 13A-12-211; Anderson v. State, 668 So. 2d 159 (Ala.Cr.App.1995). There was no independent police corroboration of the informant's allegations. See White and Carpenter, supra (anonymous telephone tip could be the basis of a Terry stop of an automobile if there is sufficient independent police corroboration of even otherwise innocent details provided by the informant). However, on the basis of considerations enumerated in Aguilar and Spinelli, supra, the known informant was shown to be personally reliable, by the officer's uncontested testimony that the informant had provided accurate information on several prior occasions. See Rickman v. State, 361 So. 2d 22 (Ala.Cr.App.), reversed on other grounds, 361 So. 2d 28 (Ala.1978); Carpenter, supra. While the exact basis of the informant's knowledge in this case could have been made clearer, we think Bailey's uncontested testimony at the hearing strongly suggests that the known informant had personal knowledge of the events and that he related that knowledge to the police. On cross-examination, Bailey answered that his confidential informant said that he had seen Hill and his car that night, and when Bailey arrived at Hilltop Apartments to investigate the alleged drug sales, the confidential informant was present at the scene and immediately provided further information regarding the suspected movements of Hill and Heard in the blue Hyundai. These circumstances, taken together, suggest that the informant had seen and was aware of Hill's activities at the apartments that same evening. Moreover, the content of the informant's information "describe[d] the accused's criminal activity in sufficient detail ... [for the officer to] know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli, supra, 393 U.S. at 416, 89 S. Ct. at 589. Here, the informant supplied the names of both suspects, a detailed description and exact location of the parked vehicle, the type of drugs being sold, and their location on Hill's person. This is "`sufficient information'" from which it can be "`reasonably infer[red] that the informant had gained his information in a reliable way.'" Lamar v. State, 578 So. 2d 1382, 1383 n. 1 (Ala.Cr.App.), cert. denied, 596 So. 2d 659 (Ala.1991), quoting Moynes v. State, 568 So. 2d 392, 394 (Ala.Cr.App.1990). See also Channell v. State, 477 So. 2d 522 (Ala.Cr.App.1985).
It must also be recalled that when Bailey stopped the vehicle, he possessed, in addition to the specific information supplied by the known informant, knowledge passed along from three other persons who had stated approximately three days earlier that Hill had offered to sell them crack cocaine. While the record is silent on the trustworthiness of these other persons, these accusations would at least tend to minimally corroborate the information submitted by the reliable known informant. Given the lesser standard of suspicion required for a Terry stop, we believe that the content and reliability of the confidential informant's information exhibited sufficient "indicia of reliability" to show that Hill had recently engaged in criminal activity and, thus, that that information warranted a stop. White, supra.
Having been established, the officer's reasonable suspicion that Hill had sold crack cocaine out of the blue Hyundai did not end by the passing of a two-hour period during which no facts came to light that might cast doubt upon the informant's allegations. Hill was suspected of involvement in a felony and was at large until the stop by Bailey. The officer was personally familiar with the suspect and his particular automobile, of which the informant had supplied a description that allowed the officer to identify it specifically. *1207 See Carpenter, supra. Like the defendant in Hensley, Hill was briefly stopped at the earliest opportunity after the suspicion arose and was questioned about his actions earlier in the evening. The initial stop was lawful under the Fourth and Fourteenth Amendments to the United States Constitution as recently applied by the Supreme Court of the United States.[3] Therefore, the evidence seized should not have been suppressed on the grounds that the police were unjustified in conducting an investigatory stop of Hill's vehicle.
The judgment of the Court of Criminal Appeals is reversed and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur.
[1] At the hearing, the trial judge stated, in pertinent part: "I'm concerned if I heard evidence that the police went over in the area where they said, two people were in this Hyundai, and they were selling drugs, or whatever, and went over there and stopped them then. But I haven't heard any evidence at all that indicates that anybody gave this officer any information that indicates that there's a blue car, with tinted windows, going to be coming through Lafayette after midnight, engaged in some type of illegal activity.... I'm having a little problem seeing how, with no laws violated, no reason whatsoever other than to just say, `Well, here's a blue car I've been hearing sells drugs, stop it anywhere, anytime, anyplace, regardless of what's going on, and for no other reason.' ... Where does the unbridled discretion stop ...?"
[2] We point out that, coincidentally, not only the circumstances of the stops were analogous in McCoy and this case; the same trial court judge presided in both cases, and Officer Jerome Bailey was the investigating officer who made the stops of both automobiles.
[3] We have recognized that the unreasonable-search-and-seizure provision of our state constitution, Ala. Const. of 1901, Article I, § 5, "obviously protects [interests] similar, if not identical," to those protected by the Fourth Amendment to the Federal Constitution, Ex parte Caffie, 516 So. 2d 831, 837 (Ala.1987). However, as in Caffie, "[W]e 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." Id. Of course, the states are free to interpret their own constitutions to ensure greater protections than the United States Supreme Court's interpretation of a federal counterpart provides. For example, compare United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (recognizing a "good faith" exception to the exclusionary rule regarding police reliance on a warrant ultimately held to be invalid) with State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1987); State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991); State v. Oakes, 157 Vt. 171, 598 A.2d 119 (1991) (rejecting the same exception on independent state constitutional grounds). But see Ex parte Morgan, 641 So. 2d 840 (Ala.1994) (subscribing to the "good faith" exception of Leon, supra). | November 1, 1996 |
67b5ea25-43a1-4402-b772-09c56d93666c | Loyal American Life Ins. v. Mattiace | 679 So. 2d 229 | 1941777 | Alabama | Alabama Supreme Court | 679 So. 2d 229 (1996)
LOYAL AMERICAN LIFE INSURANCE COMPANY, INC.
v.
Sue M. MATTIACE.
1941777.
Supreme Court of Alabama.
May 24, 1996.
*230 A. Stewart O'Bannon, Jr. of O'Bannon & O'Bannon, Florence, Davis Carr and James W. Lampkin II of Pierce, Carr, Alford, Ledyard & Latta, P.C., Mobile, for Appellant.
Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, for Appellee.
*231 PER CURIAM.
The defendant, Loyal American Life Insurance Company, Inc., appeals from a judgment entered on a jury verdict in favor of the plaintiff, Sue M. Mattiace. The jury found that Loyal American had breached a life insurance contract and had acted in bad faith by failing to pay the insurance claim submitted by Sue Mattiace. We affirm.
In February 1990, Joseph F. Mattiace, who was then age 32, met with one of Loyal American's agents and applied for a life insurance policy with a face value of $32,200. As a part of the process, the agent asked Joseph a set of questions listed on the application form and recorded his answers. One of the questions asked was: "To the best of your knowledge and belief, has ... any person on whom insurance is applied for in this application: ... [w]ithin the past 5 years been arrested or convicted for the use of, or driving under the influence of alcohol or drugs? (if yes, give driver's license number and details.)" Joseph's answer to that question was recorded by the agent as "no."
Loyal American's agent, at that meeting with Joseph, reviewed Joseph's application and approved the policy as "standard," meaning that Joseph would pay the standard rate of premiums. The policy was issued with a $32,200 face value, and Joseph's mother, Sue Mattiace, was the beneficiary. The first yearly premium was paid to Loyal American by a loan from Joseph's credit union.
On March 2, 1990, Joseph was killed in an automobile accident. Blood and urine tests indicated that Joseph was legally intoxicated at the time of his death. Loyal American was notified of Joseph's death on March 12. Thereafter, it issued a check to Joseph's credit union for the amount of the unearned premium on the policy.
Sue Mattiace made a claim on Joseph's life insurance policy in August 1990. Loyal American responded by stating that because Joseph had died within two years of the policy's issue date, it would conduct an investigation to determine the truthfulness of his answers on the application form. As a part of the investigation, Loyal American obtained a "motor vehicle report" on Joseph, which revealed that he had been convicted of DUI on June 14, 1989, approximately eight months before he applied for the life insurance policy. Loyal American informed Sue Mattiace that it was rescinding Joseph's life insurance policy, based on his DUI conviction. It also informed her that it was denying her claim for policy benefits.
In response, Sue Mattiace's attorney contacted Loyal American's vice president of claims, George Lyles, and sought an explanation of Loyal American's underwriting practices that would justify the denial of her claim. On January 22, 1991, Lyles wrote a letter to Sue Mattiace's attorney, stating:
(Emphasis added.) However, it is uncontested that the page enclosed with the "Lyles letter" was not a page from a Loyal American underwriting manual. Loyal American does not have its own underwriting manual. Instead, it utilizes numerous underwriting manuals prepared by various reinsurance companies and relies upon "subjective underwriting" based on its underwriters' background and knowledge.
The page enclosed with the "Lyles letter" was actually a page from the underwriting manual of a reinsurance company, one referred to in the record simply as "Cologne." However, the "Cologne" page did not support Loyal American's position that it would have charged Joseph a higher premium. The "Cologne" page actually indicated that for a person age 26 or over, such as Joseph, a DUI conviction within a year of the policy application would not have caused a rate increase but, rather, would have caused the policy to be issued at the standard rate.
*232 In May 1991, Sue Mattiace sued Loyal American, alleging breach of contract and the tort of bad faith. The complaint was later amended to add a third count alleging fraud, misrepresentation, and deceit. Loyal American moved for a summary judgment, which the trial court denied. Before trial, each party filed a motion in limine to exclude certain evidence. The trial court denied Loyal American's motion in limine, but granted Sue Mattiace's motion in limine.
The case went to trial in May 1995. After resting her case, Sue Mattiace voluntarily dismissed the fraud, misrepresentation, and deceit claims. Loyal American moved for a directed verdict, which the court denied. The jury returned a verdict in favor of Sue Mattiace, awarding her $32,200 on her breach of contract claim, plus $25,000 compensatory damages for emotional distress and $75,000 punitive damages on her bad faith claim. Loyal American then moved for a judgment notwithstanding the verdict or, in the alternative, a new trial or a remittitur. The trial court denied that motion. Loyal American appealed.
Although Loyal American appears to argue several issues on appeal, the issues may be summarized as follows: (1) whether the trial court erred in ruling on either party's motion in limine, (2) whether the trial court erred in denying Loyal American's motions for a directed verdict and a J.N.O.V. on the breach of contract and bad faith claims, and (3) whether recognition of the bad faith cause of action violates Loyal American's right to a trial by jury under the Alabama Constitution of 1901 or its right to equal protection of the laws guaranteed by the Alabama and United States Constitutions.
Loyal American argues that the trial court erred by denying its motion in limine to exclude the "Cologne" underwriting manual page from evidence. As noted previously, the "Cologne" page was mailed by Loyal American to Sue Mattiace's lawyer as an attachment to the "Lyles letter" explaining why it had rescinded Joseph's life insurance policy. Citing Nationwide Mut. Ins. Co. v. Clay, 525 So. 2d 1339 (Ala.1987), cert. denied, 488 U.S. 1040, 109 S. Ct. 863, 102 L. Ed. 2d 988 (1989), and other cases, Loyal American notes that under Alabama law, the issue whether an insurance company acted in bad faith in handling a claim must be judged solely by the information that was before the insurer when it denied the claim and that any information obtained after the denial is not relevant to the bad faith claim.
Loyal American contends that the "Cologne" page was not before it when it decided to rescind Joseph's policy. It says that its underwriting department uses a "Hudson" reinsurance manual to determine the effect of DUI convictions on life insurance applications and that its attachment of the "Cologne" page to the "Lyles letter" was simply a harmless mistake. Loyal American argues that the "Cologne" page should not have been admitted into evidence because, it says, the page was irrelevant and immaterial because, it says, (1) it did not rely on that page in denying the claim, (2) that page was not applicable, and (3) that page did not become an issue until after the claim had been denied.
In response, Sue Mattiace argues that the trial court did not err in admitting the "Cologne" page into evidence because, she says, (1) the "Lyles letter" to which it was attached indicates that it was used by Loyal American during the process of denying her claim, and (2) it was extremely relevant to demonstrate that "underwriting at Loyal American [becomes] firm and restrictive only after a claim [is] filed."
"A trial court has great discretion in determining the admissibility of evidence, and its rulings will not be reversed on appeal absent an abuse of discretion." Grayson v. Dungan, 628 So. 2d 445, 447 (Ala.1993). We find no abuse of discretion in the trial court's denial of Loyal American's motion in limine to exclude the "Cologne" page from evidence. Although Loyal American argues that the "Cologne" page was not before it when it decided to rescind Joseph's policy and deny the claim, the letter written by its own vice *233 president of claims indicates the exact opposite, that the page was the basis for denying the claim. Accordingly, we believe that the "Cologne" page was highly relevant to the issues raised by Sue Mattiace's breach of contract and bad faith claims, and we conclude that it was a question of fact for the jury to determine whether the page was sent mistakenly, as Loyal American now contends.
Loyal American also argues that the trial court erred by granting Sue Mattiace's motion in limine to exclude the evidence it wished to admit to show that Joseph was legally intoxicated at the time of his fatal automobile accident. It contends that Joseph's intoxication was relevant to show the materiality of his misrepresentation on the life insurance policy applicationthat he had not had a DUI conviction within the preceding five years. Loyal American states that if Joseph had answered the question truthfully, then, unless there were extenuating circumstances, the use of its "Hudson" underwriting manual would have caused it to not issue the insurance policy to him at the standard rate but to make him a counteroffer of the same coverage at a higher rate or of less coverage at the same rate.
In response, Sue Mattiace argues that the trial court did not err by excluding the evidence that Joseph was intoxicated at the time of his death. She notes that the case did not involve any issue relating to Joseph's manner of death; rather, the case involved the issues whether Joseph's misrepresentation regarding the DUI conviction was material to the issuance of the insurance policy and whether Loyal American's refusal to pay the benefits of the policy was an act of bad faith. She says that three of Loyal American's own witnesses stated that the manner of Joseph's death was immaterial to the issue whether the claim should have been paid. She notes that Loyal American had rescinded another insured's policy for failing to disclose a prior DUI conviction, even though that person's cause of death was a stabbing. She argues that Loyal American would have claimed that the failure to disclose the prior DUI conviction was a material misrepresentation, even if Joseph had died of a heart attack or a stroke, and that the fact that he died in an automobile accident while legally intoxicated would simply have prejudiced the jury with irrelevant, immaterial facts.
In ruling on Sue Mattiace's motion in limine to exclude the evidence of Joseph's intoxication at the time of his death, the trial court stated:
As noted above, we will not reverse a trial court's ruling on the admissibility of evidence unless its ruling was an abuse of discretion. Grayson, supra. We conclude that the court did not err in excluding the evidence at issue. It is clear from the record before us that whether Joseph was intoxicated at the time of his death was not relevant to the critical issue of this casewhether it was Loyal American's standard procedure not to issue a life insurance policy at a standard rate where the applicant had had a DUI conviction in the prior year.
We must next determine whether the trial court erred in denying Loyal American's motion for a directed verdict on Sue Mattiace's breach of contract and bad faith claims. In Bussey v. John Deere Co., 531 So. 2d 860, 863 (Ala.1988), this Court stated:
(Citations omitted.)
Viewing the evidence in a light most favorable to Sue Mattiace, the nonmovant as to Loyal American's motions for a directed verdict and a J.N.O.V., we must determine whether Sue Mattiace presented sufficient evidence in support of her breach of contract claim to produce a conflict warranting jury determination. It is uncontested that a contract of life insurance existed between Loyal American and Joseph Mattiace. Sue Mattiace argues that the insurance contract was breached by Loyal American's failure to pay her the policy benefits upon Joseph's death. Loyal American argues that it did not breach the contract, because, it says, it was acting within its legal rights in rescinding the contract and denying her claim for benefits based on Joseph's misrepresentation that he had not had a DUI conviction in the preceding five years.
Loyal American notes that the concept of good faith and fair dealing implied in every contract runs to both parties of an insurance contract, both the insurer and the insured. It argues that Joseph acted in bad faith by failing to disclose his DUI conviction when he applied for the insurance.
The legislature has recognized the nature of the relationship between an insurer and an insured by enacting Ala.Code 1975, § 27-14-7. That section states:
(Emphasis added.)
Given the effect of § 27-14-7, we must determine whether there was at least a question of fact warranting a jury determination on whether Loyal American acted within its legal rights when it rescinded Joseph's insurance policy and refused to pay Sue Mattiace's claim for policy benefits. In other words, was Loyal American entitled to rescind Joseph's policy, as a matter of law?
We believe not. Sue Mattiace presented substantial evidence, which is discussed in detail below, that Loyal American's underwriting department does not have its own underwriting manual and does not follow a set of standards that are binding on its underwriters, but instead follows a practice of subjective underwriting whereby each individual underwriter makes decisions based on personal experience. These facts warrant a jury's determination whether Loyal American breached its insurance contract. Accordingly, the trial court properly denied Loyal American's motions for a directed verdict and a J.N.O.V. as to Sue Mattiace's breach of contract claim.[1]
The elements of an action against an insurance company for bad faith refusal to pay a claim are:
National Security Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982). See Miller v. Preferred Risk Mut. Ins. Co., 572 So. 2d 1260 (Ala.1990) (citing Chavers v. National Security Fire & Cas. Co., 405 So. 2d 1 (Ala.1981), and see Metmor Financial, Inc. v. Commonwealth Land Title Ins. Co., 645 So. 2d 295 (Ala.1993). In bad faith cases involving an insurer's refusal to pay a claim on a policy, this Court has established the "directed verdict on the contract claim" standard.[2] In National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.1982), this Court stated:
(Emphasis added.) Following the rule of Dutton, in order to decide whether the trial court erred in denying a directed verdict in favor of Loyal American on the bad faith claim, we must determine whether Sue Mattiace met her burden of proving that she was entitled to a directed verdict on the contract claim.
Thus, a critical issue is whether Loyal American was legally entitled to rescind Joseph's policy based on his failure to inform Loyal American of his DUI conviction. If Loyal American's actions were justified under § 27-14-7, then Sue Mattiace did not meet the "directed verdict on the contract claim" standard and her bad faith claim must also fail.
Loyal American argues that Sue Mattiace failed to prove that she was entitled to a directed verdict on her contract claim and, thus, was not entitled to have her bad faith claim submitted to the jury. First, Loyal American contends that it proved at trial that it "followed a standard procedure of rating a policy if the insured had a DUI conviction within twelve months of the application unless there were extenuating circumstances" and that "a DUI conviction was material to the risk underwritten"; these facts, it argues, allowed it to rescind Joseph's policy under § 27-14-7. Loyal American also argues that the materiality of Joseph's misrepresentation was at least a question of fact for the jury and that the existence of a fact question precluded a directed verdict for Sue Mattiace on her breach of contract claim and, therefore, necessitated a directed verdict in its favor on the bad faith claim. Finally, Loyal American argues that because the question whether an insurer acted in bad faith by denying a claim must be judged by what was before the insurer at the time the denial was made, it says the "Lyles letter" and attached "Cologne" page, which was written two months after the claim had been denied, have no bearing on whether it acted in bad faith. In sum, Loyal American states that it had the right under § 27-14-7 to rescind the policy and thus had a legitimate reason for denying Sue Mattiace's claim for policy benefits.
In response, Sue Mattiace argues that she was entitled to a directed verdict on her breach of contract claim and, thus, that the trial court properly denied Loyal American's motion for a directed verdict on her bad faith claim. She contends that Loyal American *236 did not have a legitimate reason for refusing to pay her claim for policy benefits because, she says, had it known of Joseph's DUI conviction when he applied for life insurance, it would not have rejected the application and would not even have rated the policy premiums differently. She argues that Loyal American's use of numerous underwriting manuals, where no particular manual was binding on a particular type of risk, created an atmosphere of underwriting that makes it impossible to determine whether a misrepresentation such as Joseph's, regarding a DUI conviction, was always considered to be a material misrepresentation. Sue Mattiace emphasizes that the "Cologne" page, which was sent to her attorney as being the underwriting standard that Loyal American used to rescind Joseph's policy and refuse her claim for benefits, does not support Loyal American's current position. Rather, she says, it supports her position that if Loyal American had known of Joseph's DUI conviction at the time of his application, it would not have considered the conviction material to its underwriting risk and would have issued Joseph a policy at the standard premium. Thus, she argues, Loyal American's action did not fall within the protections of § 27-14-7, and, thus, that it breached the contract as a matter of law; thus, she argues, she met the "directed verdict on the contract claim" standard for her bad faith claim.
The critical issue is whether Loyal American would have issued Joseph a life insurance policy at the standard premium if he had indicated on his application that he had been convicted of DUI within the preceding year. In other words, did it have a fixed procedure or binding rule whereby such a conviction within the preceding year always caused the policy premium to be increased? If it did have such a standard operating procedure, then Loyal American's rescission of Joseph's policy and its denial of the claim for benefits fall within the protection of § 27-14-7. Given the evidence of the loose and inconsistent manner in which Loyal American has operated its underwriting department, we conclude that it had no such standard procedure.[3]
Regarding Loyal American's motion for a directed verdict on the bad faith claim, the trial court commented:
(Emphasis added.)
We agree with the trial court that Loyal American's use of numerous, differing underwriting manuals and its emphasis on each underwriter's personal subjectivity created an atmosphere in which there was great opportunity for inconsistency, where dissimilar underwriting decisions were reached regarding similar policy applicants.
This conclusion alone, however, does not answer the question whether Sue Mattiace met the "directed verdict on the contract claim" standard necessary for her bad faith claim to be submitted to the jury. Regardless of evidence to the contrary, Loyal American insists that it proved it followed a standard procedure of using the "Hudson" underwriting manual rather than the "Cologne" manual to evaluate DUI risks for life insurance. Loyal American argues that there is at least conflicting evidence on that issue sufficient to warrant a jury decision on the contract claim and, thus, that Sue Mattiace did not meet the "directed verdict on the contract claim" standard.
In response to this argument by Loyal American, the trial court stated: "I think the case [law] is also clear that a defendant can't create its own fairly debatable reason. You know that is the Catch 22 in your argument." (Emphasis added.) We believe the trial court's comment indicates that for the purpose of determining whether Sue Mattiace met the "directed verdict on the contract claim" standard, given the abundant evidence of inconsistency in the underwriting process, the court did not allow Loyal American's after-the-fact promises that it solely relied on the "Hudson" manual to evaluate "driver criticisms" to create its legitimate, debatable reason for denying the claim for policy benefits.
In Blackburn v. Fidelity & Deposit Co. of Maryland, 667 So. 2d 661, 669 (Ala.1995), we *238 stated that "an insurer's subjective belief that a portion of its insurance contract precludes coverage is not an absolute defense to a bad faith claim." We also stated that if an insurer's subjective interpretation of an insurance policy could create the fairly debatable reason needed to defend a bad faith claim, then insurers would be encouraged to write ambiguous insurance policies. Id.
Similarly, if an insurer is allowed to intentionally create an atmosphere in its underwriting department where no standards are binding on its underwriters and when a claim for policy benefits is received an underwriter can pull off a shelf underwriting standards that are stricter than those that were used when the policy was issued, then the insurer would be creating its own debatable reason for denying the claim. We cannot condone such action and let self-created uncertainty as to underwriting standards defeat a claim of bad faith where that uncertainty is the very basis of the allegation of bad faith. Thus, we hold that Loyal American cannot rely upon its chosen method of "subjective underwriting" to create its own legitimate reason for denying a claim, and we conclude that Sue Mattiace presented substantial evidence in support of each element of an action for bad faith. The trial court properly denied Loyal American's motions for a directed verdict on Sue Mattiace's bad faith claim.
For the same reasons discussed in section IV, we hold that the trial court properly denied Loyal American's motions for J.N.O.V.
Loyal American argues that allowing the bad faith cause of action violates its right to jury trial, as that right is guaranteed by the Alabama Constitution of 1901, Art. I, § 11. Citing Smith v. Schulte, 671 So. 2d 1334 (Ala.1995); Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala.1993); Moore v. Mobile Infirmary Association, 592 So. 2d 156 (Ala.1991); and Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651 (1974), Loyal American states that this Court's opinions regarding the jury trial right have held that the adoption of the Alabama Constitution of 1901 "froze" the right to a trial by jury as it existed at that time. It argues that because no bad faith cause of action existed as of 1901, the recognition of such a cause of action by this Court in 1981[4] was an unconstitutional tampering with the right to trial by jury as it was "frozen" in 1901. Thus, Loyal American contends that it is unconstitutional to allow actions based on the tort of bad faith.[5]
Loyal American also contends that any action by this Court that alters the jury trial right, in violation of § 11 of the Alabama Constitution of 1901, also violates its rights under the equal protection guarantees of the Alabama and United States Constitutions. It argues that the recognition of the tort of bad faith is a violation of its equal protection rights because, it says, allowing plaintiffs a legal cause of action to recover damages for such a wrong favors plaintiffs and unfairly discriminates against the defendant insurance companies.
Section 11 of the Alabama Constitution of 1901 states: "[T]he right of trial by jury shall remain inviolate." As noted by Loyal American, this Court has stated, albeit as dictum, that the Alabama Constitution "froze" the right to trial by jury as it existed in 1901. The Court has held: "It is well settled in Alabama that § 11 governs (1) those causes of action arising under the common law, and (2) those causes of action afforded by pre-1901 *239 statutes." Smith v. Schulte, supra, 671 So. 2d at 1342 (emphasis omitted). Loyal American's argument that its right to trial by jury, as defined by § 11, is violated by this Court's recognition of the tort of bad faith, is not well taken.
There are several flaws in Loyal American's argument. First, at a basic level of legal understanding, Loyal American appears to confuse the right to a trial with the right to a trial by jury. Even if Loyal American's argument, that § 11 prevents a trial by jury for all "new" common law causes of action recognized after 1901, was correct (we hold it is not), § 11 would not make the cause of action itself unconstitutionalit would make a jury trial on that action unconstitutional. Such an interpretation of § 11 would not preclude a bench trial on the cause of action, a trial where the judge rather than a jury serves as factfinder. Thus, Loyal American's argument that allowing "new" common law causes of action (such as the tort of bad faith and those noted in footnote 5) is per se a violation of § 11 is without merit.
Moreover, it is clear that the right to a jury trial protected by § 11 applies to all common law causes of action, including the tort of bad faith. Common law causes of action are those in which legal rights are determined, as opposed to equitable rights. We have previously noted the following regarding § 11's application to common law cases:
Henderson, supra, 627 So. 2d at 884. See Finance, Investment & Rediscount Co. v. Wells, 409 So. 2d 1341 (Ala.1981). In Henderson, this Court specifically addressed the right to a trial by jury in a bad faith case:
627 So. 2d at 884-85.
Accordingly, we hold that Loyal American's right to a trial by jury, as defined by § 11 of the Alabama Constitution of 1901, was not violated by this Court's recognition of the tort of bad faith.
As noted above, Loyal American argues that allowing the tort of bad faith violates its equal protection guarantees under the Alabama Constitution of 1901 and under the Fourteenth Amendment to the United States Constitution. Loyal American refers this Court to a series of cases holding that a plaintiff has no right to punitive damages; however, it cites no legal authority in support of its contention of unfair discrimination. "`Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor [our] function to perform all the legal research for an appellant.'" Henderson v. Alabama A & M University, 483 So. 2d 392 (Ala.1986) (quoting Gibson v. Nix, 460 So. 2d 1346, 1347 (Ala.Civ.App.1984). See Ala. R.App.P. 28(a). Moreover, we find no merit in the argument.
The judgment of the trial court is affirmed.
AFFIRMED.
SHORES, KENNEDY, COOK, and BUTTS, JJ., concur.
*240 HOUSTON, J., concurs in part and concurs in the result in part.
ALMON J., concurs in the result.
HOOPER, C.J., and MADDOX, J., dissent.
HOUSTON, Justice (concurring in part and concurring in the result in part).
I concur except as to that portion of the opinion discussing the "Constitutionality of Allowing Bad Faith Claims" issue, and I concur in the result as to that issue.
HOOPER, Chief Justice (dissenting).
In February 1990, Joseph F. Mattiace, who was then age 32, met with agents of Loyal American Life Insurance Company and applied for a life insurance policy with a face value of $32,200. As a part of the application process, one of the agents asked Joseph a set of questions listed on the application form and recorded his answers. One of the questions asked whether he had been arrested or convicted for DUI in the past five years, and Joseph said "no."
On March 2, 1990, Joseph was killed in an automobile accident. Blood and urine tests indicated that Joseph was legally intoxicated at the time of his death. Sue Mattiace, the mother of Joseph and the beneficiary under the policy, made a claim on Joseph's life insurance policy in August 1990. Loyal American responded by stating that because Joseph had died within two years of the policy's issue date, it would conduct an investigation to determine the truthfulness of his answers on the application. Loyal American discovered that Joseph had been convicted of DUI on June 14, 1989, approximately eight months before he applied for the insurance policy. Loyal American informed Sue Mattiace that it was rescinding Joseph's life insurance policy, based on his DUI conviction.
Section 27-14-7, Ala.Code 1975, allows an insurer to deny benefits if an insured has made misrepresentations that are material to the insurer's acceptance of the risk. Whether an applicant for life insurance has been convicted of DUI is certainly material to the risk accepted by the insurer. DUI convictions indicate a risk of premature death, which means a higher risk; for the higher risk, Loyal American would have charged a higher premium.
Loyal American had a standard procedure for "rating" a policy when the application disclosed a DUI conviction within 12 months of the date of the application and there were no extenuating circumstances. All of the underwriters testified that this was the standard procedure. The procedure was based upon the "driving criticisms" contained in the Hudson manual used by Ms. Dollarhide and Ms. Wilkerson, the Loyal American agents who sold the insurance policy to Joseph. If Joseph had disclosed his conviction for DUI, then Loyal American, in compliance with its standard procedure, regardless of whether there were written instructions, would have issued the policy only for a lesser amount or only at a higher premium. Because of the material misrepresentation, Loyal American was entitled to rescind the policy, and it had at least a debatable reason for denying the claim.
The majority opinion says that Loyal American had no mechanism to ensure that applicants were treated uniformly during the underwriting process. This ignores the undisputed testimony of all the underwriters that, unless there were extenuating circumstances, Loyal American "rated" all policies in which the applicant disclosed a DUI conviction within 12 months of the date of the application. The policy was rated when the company considered the applicant a higher risk. A "rated" policy resulted in a higher premium. Loyal American applies different "ratings" depending on the amount of enhanced risk. If Loyal American did not have a standard policy concerning DUI convictions, why then did the standard set of questions on the application form contain a question about prior DUI convictions?
A DUI rating would have been based upon Loyal American's standard procedure and on the Hudson manual page used by Ms. Wilkerson and Ms. Dollarhide. The rating would have been consistent and uniform with Loyal American's standard procedure, provided there were no extenuating circumstances.
The plaintiff argues that Loyal American's lack of a written requirement that the Hudson *241 manual be used proves that Loyal American had no consistent procedure. However, this argument mischaracterizes the evidence and advances form over substance. Ms. Dollarhide and Ms. Wilkerson kept the Hudson manual page at their desks and relied upon it only when considering "driving criticisms." Ms. Dollarhide and Ms. Wilkerson both testified that the Hudson manual was the required guideline.
Evidence was produced concerning 27 other policyholders who had disclosed on their applications previous DUI convictions. In 14 of those instances the DUI conviction had occurred more than 12 months before the date of the application, and in those instances "standard policies" were issued, in compliance with the Hudson guideline and the policy established by the underwriters' testimony. The remaining 13 policyholders had had a DUI conviction within 12 months of the application. Loyal American issued 10 of those policies on a higher risk-rated basis. The three remaining policies had been issued "standard," based upon extenuating circumstances. The key difference between Joseph Mattiace and the other 27 policyholders is the fact that Mr. Mattiace did not disclose his previous DUI conviction, and the other 27 did. Not only did he have a prior DUI that, without an extenuating circumstance, would have required that he be issued a rated policy, but he failed to disclose that fact to Loyal American.
Under Alabama law, if an insurance carrier has a debatable reason for denying the claim, then there is no bad faith failure to pay, as a matter of law. See National Savings Life Insurance Co. v. Dutton, 419 So. 2d 1357 (Ala.1982); National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179 (Ala. 1982); and Burns v. Motors Insurance Corp., 530 So. 2d 824 (Ala.Civ.App.1987). Because Loyal American had at least a debatable reason to deny the claim, it was entitled to a judgment as a matter of law on the bad faith claim. This Court should reverse the judgment of the trial court and remand with instructions to enter a judgment in favor of Loyal American on both the breach of contract and bad faith claims.
MADDOX, Justice (dissenting).
Today, the majority allows a beneficiary of a life insurance policy to recover punitive damages against an insurer even though there was a legitimate dispute between the beneficiary and the insurer as to whether any benefits were payable under the terms of the policy. The law does not and should not permit this to happen. Therefore, I dissent.
From the date the tort of bad faith failure to pay an insurance claim was created 15 years ago in Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1, 7 (Ala. 1981), until now, when the tort no longer resembles the tort originally created, I have been concerned that insurers could be assessed punitive damages for conduct that traditionally amount to a simple breach of contract. The result reached by the majority in this case is inconsistent with the fundamental principles of due process, in that the decision permits the infliction of punitive damages in a case in which an insurer legally refused to pay a claim.
When the tort of bad faith was created in Chavers, authorizing the recovery of punitive damages, the majority of the Court at that time stated:
405 So. 2d at 7. Several members of the Court, as it was then constituted, expressed concern about the creation of the new tort and about the direction the Court was taking. See, Chavers, 405 So. 2d at 11-17. (Torbert, C.J., and Maddox, Almon, and Embry, JJ., dissenting).
The concerns of the dissenters were soon fulfilled because it was not long before the Court decided National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357 (Ala.1982), and modified the test it had established in Chavers. In Dutton, the Court adopted a policy regarding what I call the "normal" versus the "abnormal" bad faith case:
419 So. 2d at 1362 (emphasis added). The Court today cites both Chavers and Dutton and purports to follow the test set out in Chavers. The majority says that "[i]n bad faith cases involving an insurer's refusal to pay a claim on a policy, this Court has established the `directed verdict on the contract claim' standard," but in a footnote to that statement of the Chavers rule, the majority states the principle it applies in this case as follows:
679 So. 2d at 235 (n. 2) (citations omitted). The majority then goes further and says: "Thus, a critical issue is whether Loyal American was legally entitled to rescind Joseph's policy based on his failure to inform Loyal American of his DUI conviction." 679 So. 2d at 235. If the majority, in addressing this "critical issue," was discussing the law relating to the contract claim, I would have no problem with that statement, but the majority is talking about the elements of establishing a bad faith claim. This holding punishes an insurance company for refusing to pay a claim because the policyholder had intentionally misrepresented a fact on the application for insurance.
A reading of the majority opinion, especially of a footnote in that opinion, convinces me that the majority today completely abandons the "directed verdict test" of Chavers. In Chavers, the majority of the Court unequivocally stated that the plaintiff must show that the insurance company had no legal or factual defense to payment of the insurance claim. 405 So. 2d at 7. The test set out today is quite different, and when the two tests are placed side by side, it is obvious that the legal principles set out in Chavers cannot co-exist with the legal principle upon which today's case is decided, because they are directly contradictory one to the other.
Consequently, I must disagree with the majority's permitting the recovery of punitive damages in this case, in which the record shows so plainly that the insured represented to the insurance company that he had had no prior DUI convictions, and in which it is quite clear that the plaintiff, no matter what view is taken of the evidence, was not entitled to a directed verdict on the contract claim. The closer question is whether, in view of the insured's misrepresentation, the insurer itself was entitled to a directed verdict on the contract claim and had the right, as a matter of law, to rescind the policy and make a refund of the premiums, as Loyal American contended in the trial court and in this Court. See, Ala.Code 1975, § 27-14-7. Clearly, the law should not allow for the recovery of punitive damages for breach of an insurance contract when there is a dispute between the parties whether the beneficiary of the contract was entitled to any benefits under the policy, a fact not determined until the jury returned a verdict in the plaintiff's favor. Permitting such a recovery, it seems to me, raises federal constitutional questions that implicate the due process clause of the Fourteenth Amendment. In BMW of North America, Inc. v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), the United States Supreme Court held that a state's imposition of economic penalties on those who violate its laws, whether the penalties are legislatively authorized fines or judicially *243 imposed punitive damages, must be supported by the State's interest in protecting its own citizen-consumers and its economy. How can this judicially imposed penalty support the State public policy of punishing illegal conduct, while prohibiting an insurer from rescinding a contract where policyholder is guilty of misconduct. See, Ala.Code 1975, § 27-14-7.
Although I believe that the learned trial judge properly refused to direct a verdict on the contract claim, I believe that he erred in refusing to direct a verdict on the bad faith claim. I can understand the frustration the trial judge must have had in ascertaining whether this was a "normal" or an "abnormal" bad faith case, and I do not fault him in view of the fact that this Court keeps changing the rules regarding what constitutes conduct that warrants the imposition of punitive damages.[6] The trial judge was bound by the decisions of this Court, and although normally I would not continue to dissent when this Court has established a principle, but I will continue to dissent in most of these bad faith cases because I firmly believe that punitive damages are not appropriate in these cases, especially when the right to recover on the contract claim is disputed.
Because I believe that the majority has erred, I dissent and in this dissenting opinion I will state once again why I think the constitutional rights of Loyal American were violated by the court's allowing this jury to punish it even though there was a debatable issue presented on the question of the plaintiff's entitlement to benefits under the policy.[7]
This is not the first time, of course, that this Court has allowed for the recovery of punitive damages even though there was a debatable issue to be resolved by a jury, but it is the first time the Court has issued for publication an opinion showing the extent of the modification of the Chavers rule. In another case that involved comparable circumstances, the Court issued an opinion but later withdrew it.[8] The holding in this case, unfortunately, adds more subjectivity to the Chavers test and will be confusing to trial judges when they are faced with an insurer's motion for a directed verdict, as the trial judge in this case was.
*244 I, and other members of this Court, were concerned about the creation of the tort of bad-faith failure to pay an insurance claim 15 years ago in Chavers, and the views we expressed in Chavers should be considered in addition to those I expressed in the case of Life Insurance Co. of Georgia v. Johnson, [Ms. 1940357, April 26, 1996] ___ So.2d ___ (Ala.1996).
Most of the concerns I have about the bad faith remedy were previously expressed in a dissenting opinion that I wrote in Continental Assur. Co. v. Kountz, 461 So. 2d 802 (Ala. 1984), where I said:
461 So. 2d at 811. I believe the concerns I expressed in Kountz were reiterated by the United States Supreme Court in its recent opinion in BMW, where that Court stated:
___ U.S. at ___, 116 S. Ct. at 1591. (Emphasis added.)
It is apparent to me that today the tort of bad faith refusal to pay an insurance claim does not resemble the tort that was initially created. As the quantum and standard of proof are relaxed more and more, as in this case, the size of the awards of punitive damages concomitantly increases, creating serious constitutional due process questions.
Several years ago, then Chief Justice Torbert, in Aetna Life Ins. Co. v. Lavoie, 470 So. 2d 1060, 1080 (Ala.1984), suggested that this Court should consider alternatives to the tort of bad faith refusal to pay. He noted:
I joined him in that view, which the Court has refused to accept.
In Kountz, I suggested that the Legislature might wish to address the public policy concerns shown by the proliferation of cases filed by policyholders who felt that they had been wronged. Although the legislature did not accept my challenge to adopt legislation to allow the recovery of additional damages for claimants forced to go to court to enforce their rights, the legislature did address some of the problems presented by the creation of the tort of bad faith, but this Court has methodically and systematically struck down practically all of that legislation as violating a plaintiff's right to trial by jury, even though the Supreme Court of the United States, in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1990), in a footnote, made a referral to one of those statutes in its discussion of constitutional protection against excessive jury verdicts. Pacific Mutual, 499 U.S. at 20, n. 9, 111 S. Ct. at 1044 n. 9.[9]
*245 I have followed the decisions of the United States Supreme Court relating to the recovery of punitive damages, including the latest decision, BMW of North America, Inc. v. Gore, which involved a punitive damages claim based on an alleged misrepresentation by a manufacturer as to repairs made to an automobile. The cases suggest an increasing concern on the part of that Court about standardless awards of punitive damages and many of those cases are Alabama cases. Although the Supreme Court, in the BMW case, did not draw a "bright line" distinction between what amount is permissible and what amount would be so greatly disproportionate to the award of compensatory damages as to offend the Constitution, it did set forth several general principles of law, one of which was articulated in Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 667-68, 54 L. Ed. 2d 604 (1978) ("To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort"). It seems to me that the insurer in this case had a legal right to dispute the claim; therefore, to punish the insurer for refusing to pay the claim is a due process violation.
Based on the foregoing, I believe that this Court should grant Loyal American the relief to which it is entitled under the law.
Before concluding this dissent, I write about one other portion of the majority opinion, which addresses Loyal American's argument that § 11 of Alabama's constitution was violated by the judgment in this case because, it argues, the right to trial by jury was "frozen" by the ratification of the 1901 Constitution and the bad faith cause of action was not created until 1981. I agree with the majority's conclusion that § 11 applies to "[c]ommon law causes of action" and that those actions "are those in which legal rights are determined, as opposed to equitable rights." 679 So. 2d at 239. That holding is consistent with what I said in my discussion of § 11 in my dissent in Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala.1993), but I must respectfully disagree with the majority's statement that in Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651 (1974), the Court's statement using the word "frozen" was "dictum." In Moore v. Mobile Infirmary Association, 592 So. 2d 156, 159 (Ala. 1991), this Court said:
If I am reading that statement in Moore correctly, it is bottomed on a statement made in Gilbreath v. Wallace, that statement in Gilbreath v. Wallace cannot, as the majority contends, be classified as "dictum."[10]
*246 The majority quickly and decisively dismisses Loyal American's federal constitutional claims of a denial of equal protection of the law, on the ground that Loyal American cites no authority in support of those claims. Although I note that Loyal American does not devote a significant portion of its argument to its constitutional claims, it does make this argument in its brief:
Loyal American's argument is correct. Before 1981, claimants such as this plaintiff could not recover damages for personal injury, inconvenience, annoyance, mental anguish or suffering, and/or punitive damages arising out of the failure to pay benefits under an insurance policy. In fact, this Court, not the legislature, created the tort, and did so only 15 years ago. In fact, in 1987, the legislature, after vigorous debates, adopted a series of what has commonly been referred to as "tort reform" laws, which addressed the issue of the award of punitive damages in such cases, and it was this Court that declared many of those laws to be unconstitutional as violating a plaintiff's right to trial by jury. See, Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995); Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala.1993); Moore, 592 So. 2d 156. However, this Court has made one exception to the rule that these legislative caps violate the Alabama Constitution.[11]
*247 Under the provisions of the Fourteenth Amendment to the Constitution of the United States, corporate citizens like Loyal American are guaranteed the right to equal protection of the laws and the right to due process of law. In the BMW case, the United States Supreme Court stated:
___ U.S. at ___, 116 S. Ct. at 1604. Allowing the jury to penalize this defendant based on the alleged wrong committed in this case constitutes a denial of its basic rights, and I believe Loyal American has adequately raised its claim to that constitutional protection. Consequently, I must disagree with the majority's statement that the constitutional claims were not presented. Clearly they were.
[1] We comment below on the issue whether Sue Mattiace presented evidence warranting a directed verdict in her favor on her breach of contract claim.
[2] This test is not applicable to every bad faith claim. Even if an insured is not entitled to a directed verdict on the contract claim, the bad faith claim can be submitted to the jury if the insurer recklessly or intentionally fails to properly investigate a claim or subject the results of the investigation to a cognitive evaluation and review. Blackburn v. Fidelity & Deposit Co. of Maryland, 667 So. 2d 661 (Ala.1995); Thomas v. Principal Financial Group, 566 So. 2d 735 (Ala. 1990). Further, the trial court need not expressly direct a verdict in favor of the plaintiff on a breach of contract claim in order to submit a bad faith claim to the jury. The trial court must simply determine that the plaintiff has met the standard of proof required for a directed verdict.
[3] The following is a sampling of testimony given by Loyal American employees or former employees:
"Q. Is there a sentence in Underwriting for an underwriter at Loyal American, is there a single written sentence at Loyal American in the Underwriting Department that is required as a basic foundation for underwriting?
"A. I don't think so."
"Q. When there's an applicant for a life insurance policy with Loyal American, what assurance is there that the applicant will get looked at up front in the underwriting process with the same consistency as anyone else?
"A. There's no guarantee. It's just, you know, one underwriter could have gotten ahold of it versus another, a different market, a different product. I mean, weit's just based on our knowledge and our experience as underwriters."
"Q. When you say `continue underwriting the way we were' [you] have described the underwriting inside Loyal American to be subjective underwriting, correct?
"A. Correct.
"Q. That you, at Loyal American as an underwriter, Marilyn Wilkerson, Judy Herring, nobody was ever told there was any manual or guideline, whether it was Hudson, Cologne, Transamerica, there was nothing that was required to be followed, correct?
"A. Correct."
"Q. And you state there that `Loyal American Insurance Company does not have an underwriting manual on which it relies in the underwriting process. There are available from insurers a number of guides which are used in the underwriting process. There is no particular guide or manual which is binding on the underwriters at Loyal American in writing a particular risk.' Correct?
"A. Correct.
"Q. And that was true, wasn't it?
"A. That is true."
"Q. And you have never been told by anyone at Loyal American that there's any particular guide that you are required to use as a foundation on any particular risk?
"A. I have never been told that I had to use one particular guide. Different ones have been recommended but I was never told that I had to use this one and that's it."
[4] This Court first recognized the tort of bad faith in Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1 (Ala.1981).
[5] Loyal American's argument would also question the constitutionality of allowing certain other common law causes of action, such as tortious interference with business relations (first recognized in Sparks v. McCrary, 156 Ala. 382, 47 So. 332 (1908)); tortious interference with contractual relations (first recognized in Tennessee Coal, Iron & Ry. v. Kelly, 163 Ala. 348, 50 So. 1008 (1909); the Alabama Extended Manufacturer's Liability Doctrine (first recognized in Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976)); and outrageous conduct (first recognized in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980)).
[6] I have examined the trial judge's comments, and I recognize the dilemma trial judges many times face in determining whether to permit a bad-faith-refusal-to-pay claim to go to a jury. Most of them attempt to apply the Chavers test, attempting to determine whether "the plaintiff is entitled to a directed verdict on the contract claim." It is apparent from the record that the trial judge was aware of the elements of a bad faith claim, as modified by this Court, and was aware that he is bound by our decisions. However, it is also apparent that in ruling on the bad faith claim the trial judge asked questions that were appropriately addressed to the motion for a directed verdict on the contract claim, where the parties did have a debatable issue presented. In my opinion, this should not be the analysis undertaken by a judge when determining whether an insurer can be held liable for "bad faith."
[7] That the Court has modified the Chavers test is shown by its holding in this case that "the trial court need not expressly direct a verdict in favor of the plaintiff on a breach of contract claim in order to submit a bad faith claim to the jury," and that "[t]he trial court must simply determine that the plaintiff has met the standard of proof required for a directed verdict." 679 So. 2d at 235 (n. 2). If I am reading that statement correctly, it says: If a plaintiff produces enough evidence so that a jury could find that the plaintiff is legally entitled to recover on the contract claim, then the plaintiff's bad faith claim should also be submitted to the jury.
The holding in this case could be summarized as follows: Even if the plaintiff fails to show that he or she is "entitled to recover on the contract claim as a matter of law," the plaintiff can maintain the bad-faith-refusal-to-pay claim if the trial judge is persuaded that the defense to nonpayment interposed by the insurance company, e.g., breach of contract or intentional misrepresentation, was raised as a defense not because the facts supported that defense but merely as an excuse for failing to promptly investigate and pay the claim.
[8] In Auto-Owners Ins. Co. v. Ogden [Ms. 1930368, February 10, 1995] (withdrawn on April 7, 1995), a majority of this Court affirmed the submission of a bad faith claim to the jury and the award of $500,000 in punitive damages for the failure to pay on a fire insurance policy, even though the insurance company had presented expert witnesses, including the chief of police and the fire marshal, who expressed the opinion that the evidence, both physical and testimonial, indicated that the fire was caused by arson and even though the insurance company showed that the plaintiffs had never properly filed a claim for payment before suing.
[9] The United States Supreme Court in Haslip cited the "tort reform" statutes that had been passed by the Alabama legislature. This footnote appeared in the portion of the opinion where the Court was addressing Pacific Mutual's contention that the punitive damages awarded violated its right to due process. The Court held that the review of punitive damages in Alabama did not violate a litigant's right to due process, noting the "cap" statute that had been passed by the legislature. However, the Court stated that "[a]s long as ... discretion is exercised within reasonable constraints, due process is satisfied. See, e.g., Schall v. Martin, 467 U.S. 253, 279, 104 S. Ct. 2403, 2417-18, 81 L. Ed. 2d 207 (1984); Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 16, 99 S. Ct. 2100, 2108, 60 L. Ed. 2d 668 (1979). See also, McGautha v. California, 402 U.S. 183, 207, 91 S. Ct. 1454, 1467, 28 L. Ed. 2d 711 (1971)." 499 U.S. at 20, 111 S. Ct. at 1044-45. (Emphasis added.)
[10] Black's Law Dictionary defines "dicta" as:
"Opinions of a judge which do not embody the resolution or determination of the specific case before the court. Expressions in [a] court's opinion which go beyond the facts before [the] court and therefore are individual views of [the] author of [the] opinion and not binding in subsequent cases as legal precedent."
Black's Law Dictionary 454 (6th ed. 1991).
[11] The Court held, in Garner v. Covington County, 624 So. 2d 1346, 1354-55 (Ala.1993), that the Legislature had the power to cap punitive damages in cases involving cities and counties, "[b]ecause cities and counties are exercising governmental functions, ... and because judgments against them must be paid out of public moneys derived from taxation, the reasonable limitation of § 11-93-2[, Ala.Code 1975,] on awards against them must be sustained." (Emphasis added.)
I concurred specially in Garner, stating that although I agreed with the majority that the legislature has the power to cap damages against governmental entities, I thought that neither § 11 nor § 13 of the Alabama Constitution limits the power of that body to limit damages in purely private cases. See, Garner, 624 So. 2d at 1355-56 (Maddox, J., concurring specially). In light of the holding in Garner, it appears that the character of the defendant should be a factor a court considers when interpreting a constitutional provision. | May 24, 1996 |
ee5b5358-9466-4971-88db-59ccd2a004a1 | JB Hunt Transport, Inc. v. Credeur | 681 So. 2d 1355 | 1941443 | Alabama | Alabama Supreme Court | 681 So. 2d 1355 (1996)
J.B. HUNT TRANSPORT, INC.
v.
Joseph A. CREDEUR.
1941443.
Supreme Court of Alabama.
July 12, 1996.
Rehearing Denied August 30, 1996.
*1357 Jeffrey L. Luther of Bowron, Oldenburg & Luther, P.C., Mobile, for Appellant.
Robert J. Hedge of Jackson, Taylor & Martino, Mobile, for Appellee.
*1358 Robert Digges, Jr. of ATA Litigation Center, Alexandria, VA, Robin G. Laurie of Balch & Bingham, Montgomery, for Amicus Curiae American Trucking Associations, Inc., in support of appellant.
SHORES, Justice.
J.B. Hunt Transport, Inc. ("J.B. Hunt"), appeals from a judgment based on a jury verdict in favor of Joseph A. Credeur. Credeur alleged in his complaint that on the evening of January 29, 1991, an 18-wheel tractor-trailer rig operated by an agent of J.B. Hunt negligently and/or wantonly made an unlawful lane change in an attempt to enter the northbound lane of Interstate Highway 65 from the eastbound lane of Interstate Highway 10 in Mobile County. Credeur, an employee of Sam Broussard Trucking Company, who was also driving an 18-wheel tractor-trailer, alleged that, in an effort to avoid a collision with the J.B. Hunt truck, he caused his own truck to leave the road and overturn, and he alleged that in the accident he sustained permanently disabling injuries. The truck that Credeur alleged made the unlawful lane change did not stop at the accident scene. Credeur testified that J.B. Hunt's name and distinctive paint scheme were painted on this truck.
The trial court entered a summary judgment in favor of J.B. Hunt, on the grounds that Credeur had failed to show that J.B. Hunt owned the vehicle involved in the accident; however, this Court reversed that judgment and remanded for a trial. See Credeur v. J.B. Hunt Transport, Inc., 655 So. 2d 933 (Ala.1994) (Credeur I). At trial, the jury awarded Credeur $500,000. J.B. Hunt appeals, arguing that (1) Credeur failed to present substantial evidence that J.B. Hunt owned the tractor he alleged caused the accident; (2) the trial court abused its discretion by limiting some of J.B. Hunt's attempts to impeach Credeur during cross-examination; (3) the trial court erred in refusing to allow J.B. Hunt to introduce evidence of Credeur's workers' compensation settlement; (4) Credeur failed to present substantial evidence that the accident caused his alleged future losses for which the jury was asked to award future damages; and (5) the verdict was excessive. We affirm the trial court's judgment.
J.B. Hunt's argument that Credeur failed to present sufficient evidence for a jury determination of the issues is actually in part an argument that Barber Pure Milk Co. v. Holmes, 264 Ala. 45, 84 So. 2d 345 (1955), which we held in Credeur I to be the controlling case law on the issue of evidence of ownership of the vehicle causing the accident, should not control. In Credeur I, this Court applied the principle of Barber, in which this Court stated that "the fact that the defendant's name was painted or inscribed in some manner on the motor vehicle which inflicted the injury sued for raises a presumption, or is prima facie evidence, that the defendant owned [the] vehicle, and that the driver was using it in [the] defendant's behalf." Id., 264 Ala. at 54, 84 So. 2d at 352. In Credeur I, this Court also noted the fact that, at the time of the accident, J.B. Hunt operated approximately 350 tractors and over 4,000 trailers out of its Atlanta, Georgia, terminal. J.B. Hunt could not show that one of the trucks was not involved. Accordingly, this Court reversed and remanded for trial.
In Credeur I, J.B. Hunt did not attempt to distinguish Barber based on the type of vehicle involved, but, at trial and on this appeal, J.B. Hunt has asserted that Barber is inapplicable because the truck involved in Barber was a self-propelled vehicle, rather than a tractor-trailer. This fact is significant, J.B. Hunt argues, because trailers owned by one company can be towed by tractors of another company. J.B. Hunt argues that identifying a trailer with the design and paint scheme of J.B. Hunt should not be sufficient to allow the inference that J.B. Hunt owned and operated the tractor towing that trailer. J.B. Hunt admits that the majority of states have held that a plaintiff's testimony that a defendant's name appearing on a motor vehicle creates a prima facie case, or a rebuttable presumption, that the defendant owned the motor vehicle, but it argues that, for purposes of applying this principle, the term "motor vehicle" does not include a tractor-trailer. *1359 J.B. Hunt points to § 32-1-1.1(32), Ala.Code 1975, and to several cases, none from this jurisdiction. Based on that statute and those cases, it concludes that the court should have directed a verdict in its favor, arguing that Credeur's evidence did not establish ownership of the tractor-trailer.
Section 32-1-1.1(32) defines "motor vehicle" as "[e]very vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails." J.B. Hunt argues that a trailer, not being self-propelled, cannot be included in the definition of "motor vehicle." Accordingly, the argument proceeds, any identifying insignia or markings on a trailer are not identifying insignia or markings on a "motor vehicle"; therefore, J.B. Hunt says, Credeur has not made a prima facie showing that J.B. Hunt owned the vehicle involved in the accident. Regardless of how the Alabama Code defines "motor vehicle" for purposes of Title 32, J.B. Hunt cites no compelling authority for concluding that, for purposes of the rule applied in Barber, the term "motor vehicle" does not include tractor-trailers.
J.B. Hunt primarily relies on Fuller v. Tennessee-Carolina Transportation Co., 63 Tenn.App. 330, 471 S.W.2d 953 (1970). In that case, Fuller, the owner of several commercial vehicles, suffered damage to his property when a tractor-trailer crossed the center line of a steep and winding highway and forced Fuller's driver, who was approaching this tractor-trailer, to pull to the right of the highway to avoid a collision. Fuller's driver testified that the tractor was a red II-67 series Mack cab-over-engine tractor. The only identifying mark, however, that the driver saw was a red diamond-shaped figure in the center part of the front of the trailer; that figure carried the letters "T.C.T." There was testimony that that mark matched the markings on trailers owned by the defendant. The defendant had discarded logs and other records that would have been helpful in determining whether one of its tractors was the vehicle towing its trailer. Further, the defendant was not the only common carrier owning Mack cab-over-engine tractors. The Tennessee Court of Appeals, primarily relying on the "uncontroverted evidence that the defendant frequently interchanged trailers with other carriers," held that the lower court had properly directed a verdict in favor of the defendant. Tennessee-Carolina Transportation Co., 63 Tenn.App. at 340, 471 S.W.2d at 957. The court concluded that the evidence presented did not allow the inference that it was more probable than not that one of the defendant's tractors was in the vicinity of the accident when the accident occurred.
J.B. Hunt's evidence indicates that a customer, such as Scott Paper Company, might have the use of a J.B. Hunt trailer for shipping loads from one of its facilities to another. J.B. Hunt also presented evidence that it has sold several thousand of its older trailers to other trucking companies, and it presented photographs of sold trailers showing that the J.B. Hunt logo no longer appeared on the doors of those trailers but that the doors were painted yellow. J.B. Hunt did not present evidence, as the defendant did in Tennessee-Carolina Transportation Co., to show interline and interchange operations. Further, it did not present evidence showing the frequency with which customers like Scott Paper Company have the use of J.B. Hunt trailers, and it did not present evidence showing that customers having the use of J.B. Hunt trailers travel I-10 in Mobile County. Accordingly, whatever distinction might be drawn where tractor-trailer rigs, rather than ordinary trucks, are concerned, this case does not present a factual situation compelling enough for this Court to modify its long-standing rule, which conforms with the majority rule in the United States.
J.B. Hunt argues that Credeur failed to present substantial evidence that J.B. Hunt owned the vehicle alleged to have caused the accident that injured Credeur. J.B. Hunt moved for a directed verdict, a judgment notwithstanding the verdict, and a new trial on this ground; all of these motions were denied. This Court stated in John R. Cowley & Brothers, Inc. v. Brown, 569 So. 2d 375 (Ala.1990):
569 So. 2d at 376-77. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Additionally, "[i]n ruling on a motion for a directed verdict or for a J.N.O.V., the court views the entire evidence and makes all reasonable inferences therefrom in favor of the nonmoving party. Pickett v. United States Steel Corp., 495 So. 2d 572 (Ala.1986)." Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018, 1025 (Ala.1993).
This Court held in Credeur I that Credeur had made a prima facie showing that the defendant owned the truck that caused Credeur's injuries. This Court stated:
Credeur I, 655 So. 2d at 934-35. Additionally, Credeur testified that earlier on the evening of the accident he had seen a J.B. Hunt tractor-trailer rig travelling eastbound on I-10 just as Credeur was. He stated that he could identify the tractor he had earlier seen towing the trailer as a J.B. Hunt tractor. He admitted that he was uncertain whether the tractor he had seen was the vehicle that later made an improper lane change.
Further, the testimony of James Corso,[1] the driver of the truck following immediately behind Credeur at the time of the accident, supported Credeur's position, except that he said that because of the darkness and distance he could not recognize any identifying marks on the tractor-trailer that caused Credeur's accident, but he said he did see it heading north on I-65. He stated, "I wasn't concerned at the moment with whose truck was in front of [Credeur]. I was concerned with my truck and helping this guy get out of his truck alive." Corso did testify, however, that immediately after he and another trucker pulled Credeur out of his vehicle, Credeur said to them, "it was a J.B. Hunt truck; did you see it?" Cynthia Albert, the insurance manager at Sam Broussard Trucking Company, also supported Credeur's testimony in that she stated that at every time the accident was discussed or paperwork was completed in reference to the accident, Credeur maintained that a J.B. Hunt truck caused the accident.
*1361 This Court has noted the evidence J.B. Hunt presented. The fact that it was possible that a driver for Scott Paper Company or some other customer was towing the J.B. Hunt trailer does not render it more likely than not. Credeur's evidence allows the inference that it was more probable than not that J.B. Hunt's tractor was involved in the accident. The trial judge properly denied the motions for directed verdict, judgment notwithstanding the verdict, and new trial.
J.B. Hunt argues that the court abused its discretion in limiting its cross-examination of Credeur on the issue of his previous driving record and qualifications. J.B. Hunt asserted at trial that it could show past misrepresentations by Credeur about his driving record and asserted two grounds for the admissibility of these alleged misrepresentations: (1) the issue of Credeur's credibility and (2) the issue of future lost wages.
J.B. Hunt insists that because the only testimony that the tractor-trailer that allegedly caused the accident was a J.B. Hunt motor vehicle came from Credeur, Credeur's credibility was at issue and was at issue in such a way that the judge's limitations on impeachment constituted reversible error. The proffered impeachment evidence, however, would have impeached Credeur's character by a showing of specific bad acts, none of which was related to the accident on January 29, 1991, and none of which tended to show bias against J.B. Hunt. The trial court ruled that the proffered evidence concerned a collateral matter; the court refused to allow J.B. Hunt to impeach Credeur with a prior inconsistent statement that the court concluded did not concern a material element in the case.
Nelson v. Johnson, 264 Ala. 422, 427, 88 So. 2d 358, 362 (1956). See also Watson v. City of Florala, 420 So. 2d 55 (Ala.1982). "A witness may not be cross-examined for impeachment as to specific acts of misconduct by him which have no relevancy except as tending to show that he is a person of bad character as a whole or with respect to truth and veracity." C. Gamble, McElroy's Alabama Evidence § 140.01(10) (4th ed.1991). J.B. Hunt has shown no abuse of discretion on the part of the trial judge.
As an alternative ground for admissibility, J.B. Hunt argues that the proffered impeachment evidence was relevant to Credeur's claim for damages for future lost wages. J.B. Hunt attempted to show that Credeur, on his employment application for Sam Broussard Trucking Company, had failed to list his most recent employer, M.S. Carriers. This was significant, argued J.B. Hunt, because Credeur, it alleged, had been terminated from M.S. Carriers for drinking on the job and for his involvement in a number of accidents. Additionally, J.B. Hunt attempted to question Credeur about previous traffic violations and about whether he had had his driver's license suspended or revoked.
In arguing to have this evidence admitted, counsel for J.B. Hunt told the judge: "Judge, he will say he can't get a job driving a truck because of his limitation. He can't get a job driving a truck because of his driving record." On appeal, J.B. Hunt refers to federal regulations that would prohibit a person with the driving history J.B. Hunt says Credeur has from driving a commercial vehicle. In this way, J.B. Hunt attempts to show that the driving history is relevant to the issue of future lost wages. Credeur points out that, at trial, J.B. Hunt cited no statutes and pointed to no evidence to support its assertion that Credeur's alleged driving record would forever preclude him from driving a truck in the future. Credeur also refers to the following exchange that occurred just after J.B. Hunt's counsel made the statement quoted above:
Again, J.B. Hunt has shown no abuse of discretion by the trial judge in disallowing this cross-examination.
J.B. Hunt argues that evidence of Credeur's settlement of a claim for workers' compensation benefits should have been admitted at trial. As this Court has stated, "showing that the plaintiff received payments from a source wholly independent of the wrongdoer, such as workmen's compensation or disability payments, constitutes reversible error." Illinois Cent. Gulf R.R. v. Haynes, 592 So. 2d 536, 541 (Ala.1991). J.B. Hunt argues that disallowing the evidence that Credeur had received workers' compensation benefits misleads the jury about a plaintiff's financial status. J.B. Hunt relies on § 12-21-45, Ala.Code 1975, which provides, in pertinent part:
Credeur was not seeking damages for medical or hospital expenses. Even if he were, however, this Court in American Legion v. Leahey, 681 So. 2d 1337 (Ala.1996), has today held § 12-21-45 unconstitutional. It would have been error, under prior case law and in light of our holding in Leahey, to admit the evidence under § 12-21-45.
Credeur's receipt of workers' compensation benefits and the subsequent settlement for future workers' compensation benefits are irrelevant to whether Credeur is entitled to be compensated by J.B. Hunt. The trial judge properly refused to allow J.B. Hunt to show that Credeur had received workers' compensation benefits and that Credeur entered into a settlement regarding a claim for future workers' compensation benefits.
J.B. Hunt argues that Credeur failed to present substantial evidence that the losses for which Credeur sought future damages were proximately caused by the accident of January 29, 1991. This argument, also, is without merit. Credeur's two physicians testified that the accident aggravated of Credeur's previously asymptomatic spondylitic disease. The evidence tended to show that Credeur had suffered no symptoms from this disease before the accident, but that Credeur was still suffering from a loss of range of motion of the cervical spine at the time of trial. The evidence tended to show that after the accident Credeur suffered a great deal of pain that precluded him from any heavy labor, but that he recovered enough that he attempted to return to work driving a truck. This attempt was unsuccessful and caused further deterioration of his physical condition. The accident was shown to have effectively precluded him from driving a truck for a living.
J.B. Hunt argues that the verdict was excessive and was based on speculation. Credeur claimed damages for loss of earnings, impairment of his ability to earn, physical pain and suffering, mental anguish, permanent injury, and aggravation of a pre-existing condition. He presented evidence of approximately $68,000 in past lost wages and approximately $72,000 in future lost wages.
Additionally, Credeur presented substantial evidence of mental anguish. He testified that for approximately 40 years he had been a truck driver (with intermittent periods of working at other jobs) and that truck-driving was all he had ever wanted to do for a living. He stated that he "just love[d] to be on the road" and that he would "give [his] right arm" to continue driving a truck. He testified that his favorite hobby had been riding horses, but that now, because of the aggravation of his pre-existing condition, riding horses causes him unbearable pain. He said that the aggravation of the pre-existing injury has also caused him to give up gardening, another pastime he had enjoyed before the accident. He testified that he had attempted to find light-duty work, but that he had been unsuccessful. He also had attempted to run a lounge, he said, but he said the lounge failed because the pain prevented him from effectively managing the business. Credeur testified that his employees began stealing from him, and he believed they were stealing because he was unable to remain in the lounge for any length of time to oversee his employees.
Credeur presented substantial evidence of pain and suffering. He stated that he suffered neck injuries and numbness of the right arm. His doctors testified that during examinations they observed Credeur moving in a way that indicated he was in pain. He testified that he was experiencing some pain at the time of the trial, although he said the degree of pain was less than it had been immediately after the accident. He also testified as to the difficulties he said he experienced in trying to run the lounge because of the pain.
A jury's verdict carries a presumption of correctness, but that presumption may be overcome by a clear showing that the damages award was excessive. Williston v. Ard, 611 So. 2d 274 (Ala.1992). J.B. Hunt has not made such a showing. This Court has stated that "[t]here is no fixed standard for ascertainment of compensatory damages recoverable ... for physical pain and mental suffering" and that "the amount of such award is left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise of that discretion." Alabama Power Co. v. Mosley, 294 Ala. 394, 401, 318 So. 2d 260, 266 (1975).
In Pitt v. Century II, Inc., 631 So. 2d 235 (Ala.1993), this Court noted:
631 So. 2d at 239. The verdict form showed that the jury awarded $141,000 as damages for past loss and harm and $359,000 for future loss and harm. This Court recognizes that "there [is no] yardstick to measure the amount of recompense which should be awarded for ... mental suffering," Birmingham Electric Co. v. Thompson, 251 Ala. 465, 466, 37 So. 2d 633, 634 (1948), and it concludes that the total damages awarded Credeur are consistent with the evidence of his economic losses and his pain and suffering. The record would not support a finding of any juror misconduct, bias, passion, prejudice, corruption, or improper motive. Accordingly, this Court has no authority to reduce the award of compensatory damages. Northeast Alabama Regional Medical Ctr. v. Owens, 584 So. 2d 1360 (Ala.1991).
The defendant J.B. Hunt has shown no reversible error. The judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, ALMON, INGRAM, COOK, and BUTTS, JJ., concur.
[1] The testimony quoted in this paragraph is taken from Corso's video deposition, which was read into evidence at trial. | July 12, 1996 |
af65a711-6041-4485-9d01-c85cadc66959 | Wright v. Wynn | 682 So. 2d 1 | 1950566 | Alabama | Alabama Supreme Court | 682 So. 2d 1 (1996)
Charles WRIGHT
v.
Paul WYNN.
1950566.
Supreme Court of Alabama.
July 3, 1996.
Jack Curtis, Department of Public Safety Legal Unit, Dennis M. Wright, Asst. Atty. Gen., for Appellant.
Robert A. Huffaker and N. Wayne Simms, Jr. of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, and James R. McKoon, Jr., Phenix City, for Appellee.
George W. Royer, Jr. and J. Jeffery Rich of Sirote & Permutt, P.C., Huntsville, for Amici Curiae Alabama Sheriffs' Ass'n.
Kenneth Smith, Montgomery, for Amici Curiae Alabama League of Municipalities.
PER CURIAM.
The opinion of May 3, 1996, is withdrawn and the following opinion is substituted therefor.
The defendant, Charles Wright, appeals from a judgment entered on a $20,000 jury verdict for the plaintiff, Paul Wynn, in this action seeking damages for false imprisonment and assault and battery. We reverse and remand.
The evidence, viewed in the light most favorable to Wynn, indicates the following:
On May 12, 1992, Wynn was visiting his daughter's home. Around 10:00 p.m., he walked onto her porch. At about the same time, Wright, an Alabama state trooper, had begun to pursue a speeding truck whose driver was attempting to elude Wright. The truck turned into the driveway of Wynn's daughter's home, and the driver got out of the truck and began running toward Wynn. Wynn called to the driver, who did not stop; Wynn chased the driver and threw a "swing blade" garden tool at the driver. Wright, who had radioed to headquarters the license plate number of the truck, got out of his car and ran toward Wynn with his gun drawn and aimed at Wynn, and shouted to Wynn, "Get your hands up. If you don't, I'll blow your damn head off your shoulder."
*2 While the driver of the truck fled, Wynn tried to explain to Wright that the man he was chasing had run away. Wright, however, reached for Wynn and said, "Get your ass on the ground or I'm going to blow your [deleted] head off." Wright, holding one of Wynn's arms, forced Wynn to the ground and then straddled him, with a knee in his back. Although Wynn continued to try to explain who he was, Wright continued to curse Wynn as he handcuffed him. Wright then ordered Wynn to get up and, when Wynn told him he was unable to get up quickly, Wright said to Wynn, "I will get your ass up," and then, using only one hand to hold Wynn's handcuffed arms, Wright lifted Wynn from the ground. When Wynn complained of pain and stated that he believed Wright had broken his shoulder, Wright told Wynn, "I will break your damn neck if you don't shut up." Wright then took Wynn to his patrol car, and as he did so Wynn called out toward the house for his son-in-law to come out. When Wynn's son-in-law, David McLain, came out and saw what was happening, he tried to tell Wright who Wynn was. Wright, however, told McLain to "shut up and get [his] ass back in the house" and said that if McLain did not "shut up" then Wright would "lock [him] up, too." As Wright was telling Wynn to get into his car, a deputy sheriff arrived and identified Wynn (who was on his knees beside Wright's car). Wright then released Wynn, who was covered with blood and dirt and was suffering from an injured shoulder. Later, Wright said to Wynn, "Fellow, I made a mistake."
The dispositive issue is whether Wright was entitled to a judgment as a matter of law with respect to Wynn's false imprisonment and assault and battery claims. Wright argues that the trial court should have either directed a verdict in his favor or later granted his motion for a judgment notwithstanding the verdict, based on the doctrine of discretionary function immunity. Wynn argues that Wright's conduct at the scene of the arrest takes him out from under the protective umbrella of that doctrine, which is available under certain circumstances to state employees.
After carefully reviewing the record and the briefs, we agree with Wright that the judgment must be reversed, because we agree that Wright was entitled to a judgment as a matter of law on the false imprisonment claim. The undisputed evidence indicates that Wright made a tragic mistake in detaining and arresting Wynn; however, Wright is protected under the doctrine of discretionary function immunity from any liability for that mistake in identification. Discretionary acts have been defined as those acts as to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances. See L.S.B. v. Howard, 659 So. 2d 43 (Ala. 1995). Clearly, Wright's duties as a law enforcement officer required him to make a split-second identification under difficult circumstances. Although, regrettably, Wright made the wrong decision in arresting Wynn, his decision nonetheless falls within the definition of a "discretionary act" as discussed in our cases.
However, this Court has held that a state officer or employee is not protected under the doctrine of discretionary function immunity if he acts willfully, maliciously, fraudulently, or in bad faith. Acts of such a nature are not considered to be discretionary in nature within the meaning of our cases. See Barnes v. Dale, 530 So. 2d 770 (Ala.1988); DeStafney v. University of Alabama, 413 So. 2d 391 (Ala.1981). Because the record indicates that a fact question was presented as to whether Wright used excessive and illegal force in arresting Wynn, we cannot agree that the doctrine of discretionary function immunity precludes Wynn's assault and battery claim. A mistake in identifying a suspect is one thing; abusing a suspect who has been detained and subdued is quite another. Simply put, a state trooper has a legal obligation to conduct himself in a professional manner and within the bounds of the law in making an arrest. Another jury should be allowed to determine whether Wright met that obligation under the facts of this case.
*3 For the foregoing reasons, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
OPINION WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED; APPLICATION OVERRULED.
SHORES, HOUSTON, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., concur in part and dissent in part.
MADDOX, Justice (concurring in part; dissenting in part).
I concur with that part of the majority's opinion that reverses the judgment against Officer Wright on the false imprisonment claim and states that in arresting the plaintiff he was protected under the doctrine of discretionary function immunity. However, I believe that the doctrine of discretionary function immunity also extends to the assault and battery claim. Therefore, I must respectfully dissent as to that portion of the majority's opinion that holds that the doctrine of discretionary function immunity does not preclude Wynn's assault and battery claim. For further discussion of my position, see my dissent in Breland v. Ford, [Ms. 1931653, May 3, 1996], ___ So.2d ___ (Ala. 1996).
HOOPER, C.J., concurs. | July 3, 1996 |
c7518bdb-2973-42b2-9194-390dfeb6988a | Ex Parte South Carolina Ins. Co. | 683 So. 2d 987 | 1950556 | Alabama | Alabama Supreme Court | 683 So. 2d 987 (1996)
Ex parte SOUTH CAROLINA INSURANCE COMPANY.
(Re SOUTH CAROLINA INSURANCE COMPANY v. Glenda Kay BISHOP and Yvonne South).
1950556.
Supreme Court of Alabama.
June 14, 1996.
Rehearing Denied August 30, 1996.
*988 J. Michael Tanner and Michelle A. Meurer of Ashe, Tanner, Moore & Wright, P.C., Tuscumbia, for Petitioner.
C. Harry Green of Green, Wood & Howell, Hamilton, for Glenda Kay Bishop.
Jerry Guyton of Fite, Davis, Atkinson, Guyton & Bentley, Hamilton, for Yvonne South.
SHORES, Justice.
The plaintiffs, Glenda Kay Bishop and Yvonne South, sued for a judgment declaring that they had liability insurance coverage with the defendant, South Carolina Insurance Company, for damages claimed against South by Glenda Kay Bishop in a premises liability case. The complaint alleged that insurance coverage existed under the policy issued to South's tenant, Sherry Rasberry. The trial judge held that coverage existed under the policy, and the Court of Civil Appeals affirmed. South Carolina Ins. Co. v. Bishop, 683 So. 2d 985 (Ala.Civ.App.1995). We reverse and remand.
The facts that led to this present declaratory action are as follows: On February 1, 1992, Glenda Bishop slipped and injured her ankle on the steps of a building in Winfield, Alabama, that housed two businesses, "The Carousel" and "The Rasberry Patch." Bishop sued Yvonne South, as owner of the premises and d/b/a The Carousel, and Sherry Rasberry d/b/a The Rasberry Patch. The complaint claimed a defect in the premises as the proximate cause of Bishop's injury.[1] The trial court entered a summary judgment for both South and Rasberry. Bishop appealed the summary judgment, but only as to South. This Court, in an opinion written by Justice Almon, reversed the judgment and remanded the cause on the grounds that material issues of fact existed and that the summary judgment was therefore improper. Bishop v. South, 642 So. 2d 442 (Ala.1994).
On June 3, 1994, Bishop and South filed the present action, seeking a declaratory judgment and an order requiring South Carolina Insurance Company to defend and indemnify South, under the policy issued to Rasberry. The evidence presented at the trial of this case indicated that in June 1990, Sherry Rasberry d/b/a The Rasberry Patch had entered into an agreement with Yvonne South d/b/a The Carousel to lease from South *989 a portion of the business premises owned by South in Winfield. The agreement read:
Sherry Rasberry testified that she had understood that this lease agreement obligated her to provide insurance on her own business, The Rasberry Patch, and obligated South to provide insurance on South's business, The Carousel. South and her daughter, Janice Youngblood, testified that they had understood that the intent of the lease agreement was that Rasberry was obligated to provide liability insurance for both businesses. Janice Youngblood also testified that her mother had purchased an Alfa Insurance Company liability policy that had expired in January 1992, a month before the accident, and that the Alfa policy was not renewed for financial reasons. The insurance agent for South Carolina Insurance Company with whom Rasberry dealt testified that Rasberry never requested that her policy cover South's business.
The trial court held that Rasberry and South were engaged in a joint venture, if not a partnership, and that Rasberry's insurer had failed to designate the nature of the named insured in the declaration, through no fault of the named insured or these plaintiffs, and that simple inquiry or inspection would have revealed that Rasberry and South were engaged in a joint venture. The trial court held that South Carolina Insurance Company is obligated to defend South in Bishop's pending civil action and is further obligated to pay any damages that may be assessed against South, up to the policy limits and as provided by law.
South Carolina Insurance Company appealed the judgment to this Court, which transferred the appeal to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975. In an opinion by Judge Yates (Robertson, P. J., concurring, and Monroe, J., concurring in the result), the Court of Civil Appeals affirmed. Judges Crawley and Thigpen dissented on the grounds that policies of insurance are to be construed as written and that, as the policy in this case is written, South is not a named insured. We granted certiorari review.
We must consider whether the trial court and the Court of Civil Appeals erred in holding that South Carolina Insurance Company must defend and indemnify Yvonne South under the policy issued to Sherry Rasberry.
It is settled law that if in its terms a contract is plain and free from ambiguity, then there is no room for construction and it is the duty of the court to enforce it as written. See, e.g., Utica Mutual Ins. Co. v. Tuscaloosa Motor Co., 295 Ala. 309, 313, 329 So. 2d 82, 85 (1976); Southern Guaranty Ins. Co. v. Wales, 283 Ala. 493, 496, 218 So. 2d 822, 825 (1969); Chemstrand Corp. v. Maryland Casualty Co., 266 Ala. 626, 632, 98 So. 2d 1, 6 (1957); Kinnon v. Universal Underwriters Ins. Co., 418 So. 2d 887, 888 (Ala.1982). We have said:
Commercial Union Ins. Co. v. Rose's Stores, 411 So. 2d 122, 124 (Ala.1982).
There is no ambiguity in Rasberry's insurance contract. The fact that the lease could be read to raise a question as to whether Rasberry agreed to purchase insurance for both businesses, or agreed only to purchase it for her own business, does not create an ambiguity in the insurance policy that she purchased for herself and her business. There is no dispute that the only insured named in the declaration in the South Carolina Insurance Company policy was "Sherry Rasberry d/b/a/ Rasberry Patch." As Judge Crawley pointed out in his dissent
683 So. 2d at 987. Where no ambiguity exists, the contract will be enforced as written. Cannon v. State Farm Mut. Auto. Ins. Co., 590 So. 2d 191 (Ala.1991).
This case was heard by the trial court, without a jury. Where the trial court hears ore tenus evidence in a nonjury case, a presumption of correctness exists as to the court's findings of fact. Gaston v. Ames, 514 So. 2d 877, 878 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala.1981). However, when the trial court improperly applies the law to the facts, as the court did in this case, no presumption of correctness exists as to the court's judgment. Gaston, supra; Smith v. Style Advertising, Inc., 470 So. 2d 1194 (Ala.1985); League v. McDonald, 355 So. 2d 695 (Ala.1978).
The trial court and the Court of Civil Appeals misapplied the law in determining there was an error in the listing of the "named insured" in the declaration of the liability insurance policy, when the parties had presented no evidence indicating an ambiguity in the contract. The conclusion by both the trial court and the Court of Civil Appeals that there was a joint venture between these parties was irrelevant to the determination required in this case, because this policy specifically provides that as to a partnership or a joint venture, the partners or joint venturers are insured only if the policy designates a partnership or joint venture in the declaration.
The trial court and the Court of Civil Appeals erred in holding that South Carolina Insurance Company must defend and indemnify Yvonne South. The judgment of the Court of Civil Appeals is reversed and the cause is remanded.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, ALMON, HOUSTON, and COOK, JJ., concur.
[1] Case number CV-92-261, Circuit Court of Marion County. | June 14, 1996 |
79669926-6c7a-415c-9473-2f420f2b1ed0 | General Motors Corp. v. Hopper | 681 So. 2d 1373 | 1940777 | Alabama | Alabama Supreme Court | 681 So. 2d 1373 (1996)
GENERAL MOTORS CORPORATION
v.
Johnny P. HOPPER.
1940777.
Supreme Court of Alabama.
July 12, 1996.
Rehearing Denied August 30, 1996.
D. Alan Thomas and Eugene D. Martenson of Huie, Fernambucq & Stewart, Birmingham, R. Chris Harvey of Strasburger & Price, Dallas, TX, for Appellant.
William W. Smith, R. Ben Hogan III and Pamela D. Beard of Hogan, Smith & Alspaugh, P.C., Birmingham, for Appellee.
PER CURIAM.
The unpublished memorandum of affirmance issued on November 17, 1995, is withdrawn and the following opinion is substituted therefor:
The Tenth Judicial Circuit, which consists of Jefferson County, is divided into two independent divisions, the "Bessemer Division" and the "Birmingham Division." The Birmingham Division essentially operates as a judicial circuit separate from the Bessemer Division, which operates also as a separate judicial circuit. United Supply Co. v. Hinton Constr. & Dev., Inc., 396 So. 2d 1047, 1049-50 (Ala.1981); Glenn v. Wilson, 455 So. 2d 2, 3 (Ala.1984).
This case involves a resident of the Bessemer Division who, without objection, served as a juror in a Birmingham Division case, which was tried to a verdict in favor of the defendant, General Motors Corporation. After trial, the plaintiff, Johnny P. Hopper, moved for, and was granted, a new trial on the basis that a resident of the Bessemer Division had improperly served as a juror. At issue is whether the plaintiff was precluded from raising this issue after the trial, i.e., whether the plaintiff's failure to raise the issue before trial acts as a waiver of the issue.[1]
In Pogue v. State, 429 So. 2d 1159 (Ala. Crim.App.1983), the Court of Criminal Appeals, citing Batson v. State, 216 Ala. 275, 113 So. 300 (1927), held that the defendant, whose jury in the Pickens County Circuit Court had included a juror who did not live in Pickens County, but in Lamar County, had waived any objection on that basis by not *1374 stating the objection before the jury was sworn. The court noted that the jury list had given for that juror an address suggesting that he was not a resident of Pickens County; the information given by that list reasonably could have led to the discovery of the fact of the juror's nonresidence. That court stated:
429 So. 2d at 1161.
We agree with this reasoning and observe that there are no material distinctions between this case and Pogue.[2] Here, as in Pogue, the nonresident's "proper address was given on the list of prospective jurors" and "the objection could have been discovered with the exercise of reasonable diligence at the time the jury was being qualified." Thus, any defect in the juror's qualifications, based on nonresidency, "does not constitute a proper ground for a motion for a new trial." Pogue, 429 So. 2d at 1161.
The trial court erred in granting the plaintiff's motion for a new trial. The new trial order is therefore reversed, and the case is remanded.
APPLICATION GRANTED; UNPUBLISHED MEMORANDUM OF NOVEMBER 17, 1995, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
HOOPER, C.J., and HOUSTON, KENNEDY, and INGRAM, JJ., concur.
MADDOX, SHORES, and COOK, JJ., concur specially.
MADDOX, Justice (concurring specially).
I agree with the majority in reversing the trial court's new trial order. I write to set out the facts and the reasons why I believe the trial court erred in granting the plaintiff's motion for a new trial.
The issue is whether a party who, before trial, does not object to the general qualifications of a juror can, in a post-trial proceeding, attack the qualifications of the juror and properly receive a new trial. The trial court ruled that the plaintiff could raise this issue post-trial and granted the plaintiff a new trial. I believe that this juror qualification issue should have been raised before trial, and that the plaintiff waived his right to challenge the juror's qualification to serve by not raising the issue before the trial.
This case arose in Jefferson County, which is divided into two court divisions, the Bessemer Division and the Birmingham Division. A juror residing in the Bessemer Division (also known as the Bessemer Cut-off) was summoned for jury service in the Birmingham Division. He was living in the Birmingham Division at the time of this trial.
Originally, I thought that the trial judge correctly held that the juror was disqualified and that the issue could be raised post-trial, and I voted to summarily affirm the order granting a new trial. However, after reading the briefs on application for rehearing and after re-examining the record, I am convinced that the trial court erred in granting the plaintiff's motion for a new trial. I concur with the majority to reverse the new trial order and to remand the cause, based on the following reasons:
(1) The record clearly shows that the plaintiff waived any right to challenge the juror;
*1375 (2) The juror actually lived in the Birmingham Division when the case was tried; furthermore, Ala.Code 1975, § 12-16-90, provides that jurors selected, drawn, and summoned under the provisions of the Code relating to the drawing, summoning, empaneling, etc., of grand and petit juries "must and shall in all respects be deemed legal and to possess in full in every respect power to perform all of the duties belonging to grand and petit jurors";
(3) Even assuming there was not a waiver of the challenge, the practice in Jefferson County, and in Barbour County, of selecting jurors from only a division of a court within a county, is contrary to the policy and intent of the people of Alabama and the Legislature respectively, in ratifying the Judicial Article to the Alabama Constitution (Amendment 328) and in enacting Act No. 594, Ala. Acts 1978, codified at Ala.Code 1975, §§ 12-16-55 through 12-16-64;
(4) The public policy of this State relating to jury service contemplates a uniform system throughout each county of the State, as evidenced by § 12-16-57, which specifically provides that the jury commissions for each county "shall compile and maintain an alphabetical master list of all persons in the county who may be called for jury duty, with their addresses and any other necessary identifying information"; and
(5) Any local acts of the Legislature providing for the selection and service of jurors would not be uniform; therefore, the Legislature intended to repeal those acts by the general repealer clause of Act No. 594, Ala. Acts 1978, codified at Ala.Code 1975, §§ 12-16-55 through 12-16-64.
I am aware of the provisions of Ala.Code 1975, § 12-16-44, and I am aware that it was not specifically repealed by Act No. 594, now codified as Ala.Code 1975, §§ 12-16-55 through 12-16-64. However, I believe, in view of the many references to "county" in Act No. 594, that the provisions of Act No. 59, Acts of Alabama 1939 (§ 12-16-44) was repealed by the general repealer clause.[3] Act No. 594 substantially adopted for this State the provisions of the Uniform Juror Selection and Service Act, and the whole intent of the Judicial Article and the acts the Legislature adopted pursuant thereto was to give uniformity of procedure. I will discuss this in greater detail in section II of this special concurrence.
There are two substantive reasons why the plaintiff is not entitled to a new trial. First, as the majority opinion states, the plaintiff waived any objection he might have had by failing to raise it before trial. Second, even assuming there was not a waiver, I believe this Court should re-examine the provisions of law relating to the drawing of jurors from a division of a court instead of county-wide.[4]
I believe the plaintiff waived any objection he might have had as to the qualification of the juror to serve on the petit jury. I set out the following underlying facts, which allow a better understanding of this case. The plaintiff filed this product liability action against General Motors Corporation, alleging that the plaintiff Johnny P. Hopper had been injured because of a malfunction of the braking system in a 1987 model Buick Somerset automobile.
The juror in question, James Lowden, had been called for jury service in the Birmingham Division in 1992; he was called again in October 1994, when he served as a member of the trial jury in this case.[5] The record shows that for several years before October 1994,[6] Lowden had lived at Cross Creek Apartments, 909 Chapel Creek Drive, in Hoover. This Chapel Creek Drive residence, admittedly, was located in the Bessemer Division of the Tenth Judicial Circuit. The record shows that during this time, the juror bought his automobile tags in the Birmingham Division.
On October 1, 1994, Lowden moved from the Cross Creek Apartments on Chapel Creek Drive in Hoover, located within the Bessemer Division, to Tyler Circle in Hoover, located within the Birmingham Division.[7] Therefore, Lowden was actually living within the Birmingham Division (the division in which the case was tried) at the time he served on the jury in this case, beginning October 17, 1994, but he had not lived in that Division for all of the 12 months preceding the trial.
The record clearly shows that Lowden, who held a master's degree in education, believed that he was, in fact, a resident of the Birmingham Division during all of the years that he lived in Hoover. He also believed that he was fully qualified to serve on the Birmingham Division jury on October 17, 1994. The confusion that is caused by asking jurors to determine in which division they *1377 live is evident from the record.[8]
After a seven-day trial in the Birmingham Division of the Tenth Judicial Circuit (Jefferson County), the jury returned a verdict in favor of General Motors. After the jury verdict was returned, and within the time permitted for a party to file post-trial motions, the plaintiff's attorney learned that juror Lowden had not been a resident of the Birmingham Division for the 12 months preceding the date of the trial. The trial judge conducted a lengthy hearing, heard the testimony of several witnesses, and concluded that the plaintiff was entitled to a new trial.
The plaintiff's fundamental argument is that the trial judge correctly granted a new trial because Lowden had not resided in the Birmingham Division for the 12 months preceding the trial of the case, and, therefore, was disqualified, as a matter of law, to serve. I disagree with this argument. Based on the facts in this record, however, I believe that even if Lowden was disqualified, the plaintiff waived his right to challenge Lowden's qualification.
When the petit jury for this case was qualified generally, neither the plaintiff nor his attorney was present. Judge Arthur Hanes, who qualified the jury generally, but who did not try the case, testified at the hearing on the motion for new trial that he asked the jurors if they had been residents of the Birmingham Division of the Tenth Judicial Circuit for the past 12 months.[9] At the post-trial hearing conducted by Judge William Wynn, who actually tried the case, Lowden testified that he did not recall Judge Hanes's question, but testified that he would have answered the question negatively if he had been directly asked if he was a resident of the Bessemer Division.[10] Furthermore, during voir dire examination, the juror introduced himself as being a resident of Hoover,[11] and his Chapel Creek Drive address, which was physically located within the Bessemer Division, was listed as his residence on the juror list. This list was available to the plaintiff before the trial and during voir dire. In other words, the fact that at one time Lowden did not physically live in the Birmingham Division was apparent from the face of the juror list.
If the residence of the juror was of such paramount importance to the plaintiff as to be grounds for a new trial, then the plaintiff should have questioned Lowden's residence during voir dire examination. The plaintiff's counsel did not ask Lowden where he lived, whether he lived in the Bessemer Division or in the Birmingham Division of the circuit, or any questions from which counsel could determine which division the juror lived in. Instead, the plaintiff's counsel chose to ask Lowden numerous questions pertaining to his knowledge of the Alabama Business Council, his relationship with three Birmingham attorneys, the bumper stickers on his *1378 car, and problems he had experienced with an old Ford Fairlane automobile.
In Alabama, the law is clear that a post-trial showing of juror disqualification does not automatically result in allowing a new trial at the request of the losing party. To the contrary, a residential disqualification is deemed to have been waived if it is first brought to the court's attention post-trial. In Pogue v. State, 429 So. 2d 1159 (Ala.Crim. App.1983), the Court of Criminal Appeals held that in a post-trial proceeding a defendant could not challenge a juror who had served on a jury in Pickens County, but who lived in Lamar County. In Pogue, the juror's address on the jurors' list was "P. O. Box 446, Millport, Alabama." The Court took judicial notice that Millport was in Lamar County, not Pickens County, and held that this fact gave notice to the attorneys of a potential residential disqualification. In Pogue, the Court said:
429 So. 2d at 1160-61.
In Pogue, the Court further held that there was an additional reason why the rule of Carson v. Pointer, 11 Ala.App. 462, 465, 66 So. 910 (1914), should stand and be applied in that case:
429 So. 2d at 1161 (citations and emphasis omitted).
The waiver or preclusion rule as articulated in Pogue was revisited in two 1993 decisions of this Court, Holland v. Brandenberg, 627 So. 2d 867 (Ala.1993), and McBride v. Sheppard, 624 So. 2d 1069 (Ala.1993). Both of these cases follow the well-established rule that post-trial attacks on a juror's qualifications must fail where the issue in question was not raised in the jury-selection process.[12]
*1379 In Holland, a juror failed to disclose a prior felony conviction, and the defense sought a new trial based on this alleged juror disqualification. Distinguishing Chrysler Credit Corp. v. McKinney, 456 So. 2d 1069 (Ala.1984), the Holland court, through an opinion written by Justice Adams, held that the juror disqualification issues, raised after the fact, had been waived. In Holland, counsel for the objecting party asked no voir dire questions on the qualification issue; therefore, the Court held that the qualification issue, which was not raised until after the trial of the case, had been waived. The Court said:
627 So. 2d at 870.
Shortly after Holland was decided, this Court in McBride, supra, considered whether the statutory literacy requirement had been waived. McBride involved a medical malpractice action in which the losing plaintiff attacked the verdict on the basis that one juror was disqualified by virtue of his inability to "read, speak, understand and follow instructions given by a judge in the English language," as required by § 12-16-60(a)(2). Again, distinguishing Chrysler Credit, the Court in McBride explicitly stated that Alabama has never mandated an automatic new trial every time a juror might be shown to have been disqualified under the terms of the statute. Instead, the Court, following the Holland rule, held that counsel's lack of due diligence in testing juror qualifications constituted a waiver.
The record makes it clear that plaintiff's counsel did not inquire as to Lowden's residence until well after the trial. Holland and McBride are analogous to this case in that in each of those cases the juror's disqualification was not made an issue until post-trial.
It is undisputed that Lowden's Cross Creek address shown on the jury list was within the Bessemer Division, but it is also undisputed that Lowden had been summoned previously to serve in a Birmingham Division trial. Alabama Code 1975, § 12-16-90, states that jurors selected, drawn, and summoned under the provisions of the Code relating to the drawing, summoning, empaneling, etc., of grand and petit juries "must and shall in all respects be deemed legal and to possess in full in every respect power to perform all of the duties belonging to grand and petit jurors." With this knowledge (actual or constructive), and in view of the presumption of law, the plaintiff's trial counsel failed, when the jury was being selected, to ask any questions pertaining to Lowden's residence, but raised the issue for the first time in a post-trial motion. As seen in Pogue, a party's knowledge at voir dire of a juror's residential disqualification can give rise to a waiver. Similarly, in Hood v. Kelly, 285 Ala. 337, 231 So. 2d 901 (1970), the Court held that knowledge at the voir dire stage of kinship of a juror could not be used post-trial to set aside the verdict and obtain a new trial. Therefore, I conclude that the plaintiff has waived his right to object to Lowden's service as a juror and that the trial court erred in granting a new trial.
In Hood, the Court said that, although it could not find an Alabama case directly on point on the question, there were several cases stating that a good ground for challenge could be waived, citing Lyman v. State, 45 Ala. 72 (1871); Batson v. State, 216 Ala. 275, 113 So. 300 (1927). The Court *1380 quoted from Oliver v. Herron, 106 Ala. 639, 17 So. 387 (1895), as follows:
285 Ala. at 339, 231 So. 2d at 904.
Insofar as I can tell, this Court has never affirmed an order for a new trial granted on the basis of residential disqualification where, as here, the attorney had either actual or constructive knowledge of the juror's potential residential disqualification, yet waited until post-trial to first raise that issue. See Bufford v. State, 382 So. 2d 1162 (Ala.Cr. App.), cert. denied, 382 So. 2d 1175 (Ala.1980) (a Dallas County resident could properly sit as a juror in a Wilcox County felony homicide trial). In Nordan v. State, 143 Ala. 13, 19, 39 So. 406, 408 (1905), the defendant objected on the basis that a juror lived in a division of the judicial circuit outside the division in which he was summoned to serve. The Court held that this objection was not well taken, holding that if the juror was "otherwise qualified, and was a resident householder ... of the county, he was a competent juror."
Section 6 of Act No. 594, now codified as Ala.Code 1975, § 12-16-60, provides:
(Emphasis added.) The juror in this case meets each of the above-stated qualifications, and, having been summoned to serve in the Birmingham Division, "must and shall in all respects be deemed legal and to [have] possess[ed] in full in every respect power to perform all of the duties belonging to grand and petit jurors." § 12-16-90(b), Ala.Code 1975.
Clearly, Alabama has no statutory provisions mandating automatic disqualification of a potential juror merely because he or she lives in another division of the forum county; consequently, it would be incumbent upon the party challenging a juror to show "probable prejudice."
It is significant that the trial judge overruled all of the plaintiff's other post-trial motions, including those based on alleged pretrial publicity, the contention that the verdict was against the great weight of evidence, the argument that counsel made inflammatory statements, and other such grounds. The only basis for the order granting a new trial was the juror's alleged residential disqualification. On this issue, the trial court made no findings of "probable prejudice." In my opinion, Alabama law requires proof of "probable prejudice" in order to sustain the granting of a new trial:
Parish v. State, 480 So. 2d 29, 31 (Ala.Cr.App. 1985), quoting Brown v. State, 392 So. 2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So. 2d 1266 (Ala.1981); see also, Vaughn v. State, 395 So. 2d 97 (Ala.Cr.App.1980).
In analyzing the "probable prejudice" test, the trial court must consider a variety of factors, which may vary from case to case. Such factors might include a prospective juror's inadvertence or willfulness in falsely answering voir dire questions or refusing to answer such questions; the failure of a juror to recollect; and the materiality of the matter *1381 inquired about. Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330 (1970). Moreover, the Court of Criminal Appeals has explicitly held that mere nonresidence alone is insufficient to set aside the verdict: "Nonresidency... does not impute prejudice per se," and "there is no inherent prejudice attributed to a trial by a nonresident." Bufford v. State, 382 So. 2d 1162, 1172-73 (Ala.Cr.App.1980).
The holding in Bufford, where no "probable prejudice" was found, has been consistently followed by every subsequent Alabama case considering the issue of juror residential qualification. One line of cases seems to adopt a "waiver" or "preclusion" rationale, as illustrated in Pogue. The other line of cases focuses not entirely on the waiver issue, but, rather, on whether the complaining party proves "probable prejudice" resulting from the juror's residential disqualification. For example, in Huckabaa v. State, 475 So. 2d 891 (Ala.Cr.App.1985), the Court of Criminal Appeals upheld the denial of the defendant's new trial motion, which had been based on the fact that one of the jurors was apparently a resident of Virginia, yet sat on the Covington County jury. Following the rationale of Pogue and Bufford, the Huckabaa Court found no proof of prejudice and affirmed the judgment based on the jury's verdict. 475 So. 2d at 893.
Applying those principles of law to the facts of this case, I find no probable prejudice occurring by reason of the juror's service. On the contrary, the proof is otherwise. This case is unlike Chrysler Credit Corp. v. McKinney, 456 So. 2d 1069, 1071-72 (Ala.1984), in which evidence presented in support of a new trial motion showed that a juror was incapable of understanding the evidence, was illiterate, and was unable to hear questions posed to him during the course of trial. In Chrysler Credit, the Court stated:
456 So. 2d at 1072.
Based on the foregoing, I conclude that the plaintiff was at least constructively notified that Juror Lowden had not lived in the Birmingham Division for the 12 months preceding the trial, even though this was the second time he had been summoned for jury service in the Birmingham Division. The plaintiff cannot now claim that the residence of the juror "on the other side of the division line" so affected his right to a fair trial as to warrant a new trial, when he did not use due diligence to inquire of the juror whether he actually had been a resident of the Birmingham Division for the previous 12 months. Clearly, the plaintiff did not exercise due diligence in ascertaining the qualifications of the juror to serve on the petit jury and, therefore, waived his right to challenge the juror's qualification to serve. Furthermore, the plaintiff failed to affirmatively prove that probable prejudice resulted from Lowden's service on the jury, so as to support the grant of a new trial.
Even assuming that the plaintiff did not waive the issue of Juror Lowden's residence, I believe a new trial was not warranted on the basis that the jury selection procedures that were used in this case, and which are used in some other counties with divisions, are not uniform with the provisions of the Jury Selection Act and the procedures used to draw and select juries in this State at this time. The plaintiffs rely strongly on the provisions of § 12-16-44 as authority to sustain the trial court's grant of the new trial. Although the Legislature did not specifically repeal the provisions of what is now § 12-16-44 when it adopted Act No. 594, the Legislature did include in that Act a general repealer provision, and I believe that the local and general laws with local application that provide for the selection of jurors from a division of a circuit court within a county were repealed by Act No. 594, Ala. Acts 1978, codified at Ala.Code 1975, §§ 12-16-55 through 12-16-64. Clearly, such an interpretation of the jury laws would make the *1382 drawing, selecting, and service of jurors in this State uniform and would foster the policy of the Legislature expressed in §§ 12-16-54 and -55, and, furthermore, would carry out the intent of the people of Alabama to set up a judicial system that is uniform.
The policy of Act No. 594 was stated in § 1 of that Act and now appears in the Code as § 12-16-55, which reads as follows:
(Emphasis added.) On several occasions, this Court has addressed the purpose of Act No. 594, and although most of what this Court has written has been written in criminal cases, it is equally applicable to civil cases. In Beck v. State, 396 So. 2d 645 (Ala. 1980), this Court discussed the policy of the 1978 Jury Selection Act, as follows:
396 So. 2d at 653-54 (emphasis added).
In other cases, this Court has stated that "the Legislature intended, in adopting this public policy, that our trial juries should be selected from a list which contains a fair cross section of the [population of the] area served by the court, and that any form of discrimination against a particular juror on account of race, color, religion, sex, national origin, or economic status is prohibited," Ex parte Branch, 526 So. 2d 609, 618-19 (Ala. 1987); see Ex parte Jackson, 516 So. 2d 768 (Ala.1986), and that policy is consistent with the due process requirements of the Federal Constitution. It has also been held that the "fair cross section" requirement of the statute "is analogous" to the "fair cross section" requirement derived from the Sixth Amendment to the United States Constitution, and that "`petit juries must be drawn from a source fairly representative of the community.'" Rayburn v. State, 495 So. 2d 733, 734 (Ala.Crim.App.1986), quoting Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690 (1975). I do not think that it could be fairly debated that the "area to be served by the court" could be interpreted to refer to anything other than a county, because § 12-16-57, codifying Act No. 594, provides that "[t]he jury commission for each county shall compile and maintain an alphabetical master list of all persons in the county who may be called for jury duty, with their addresses and any other necessary identifying information." (Emphasis added.)
The whole concept and purpose of the Judicial Article of our Constitution was the establishment of a Unified Judicial System, with the various courts bearing uniform jurisdiction and with each construing rules of procedure that would be uniform statewide. The jury commission for each county in Alabama compiles and maintains a master list of the names or identifying numbers of all prospective jurors from the county-at-large, except Jefferson County (where the list is compiled separately from the Bessemer Division and the Birmingham Division) and Barbour County (where the list is compiled separately from the Clayton Division and the Eufaula *1383 Division). The Administrative Office of Courts, using computers, summons all jurors in all counties of Alabama from the master lists provided by the jury commissions. All the forms and rules that this Court has approved are based on the county as a whole, not divisions within the county.
A fair interpretation of Act No. 594[13] suggests that the jury lists should be compiled and the selection of juries should be made county-wide, not in a division of a county. Consequently, it appears to me that Local Acts 1900-01, No. 768, § 36, which provided for the selection of juries from a division of the Circuit Court of Jefferson County,[14] was repealed by the general repealer clause of Act No. 594, Ala. Acts 1978, now codified as Ala.Code 1975, §§ 12-16-55 through 12-16-64.[15]
To affirm the order of a new trial would invite attorneys in multi-division counties, whether representing plaintiffs or defendants, to close their eyes to error. The defendant addresses this in its brief in support of its application for rehearing, as follows:
Brief of Appellant on Application for Rehearing, p. 3. Although I cannot speak to the truth of this statement, it strikes me as very logical that such could occur.
Although this Court has not previously discussed the juror residence question as it applies to the Bessemer Division, it has considered the venue question arising in other counties, which has come to the Court from time to time over the years. The territorial distinction between the Bessemer and Birmingham Divisions of Jefferson County has been determined not to be jurisdictional in nature, but only to affect venue.
There has been confusion about the application of the enabling legislation creating the Bessemer Division, at other times and involving other issues, and some Justices have been of the opinion that it was jurisdictional in nature, and, therefore, that an action erroneously filed in the Birmingham Division for a Bessemer Division tort was subject to dismissal for want of "territorial jurisdiction." See generally, C. Cleveland, "Territorial Jurisdiction of the Circuit Court of the Bessemer Cut-off," Vol. 3, No. 2, Birmingham Bar Association Bulletin (Summer 1992), Glenn v. Wilson, 455 So. 2d 2 (Ala.1984). It appears to be settled today that, as to transitory tort claims, the Bessemer Division Circuit Court has no exclusive jurisdiction and that it is incumbent upon the party opposing trial in a particular division of the Jefferson County Circuit Court to raise the issue through a timely filed motion to transfer:
Glenn, 455 So. 2d at 4-5. See also, Birmingham Federal Savings & Loan Ass'n v. Buddy's Marineland, Inc., 545 So. 2d 16 (Ala. 1989); Ex parte Birmingham Southern R.R., 473 So. 2d 500 (Ala.1985). By analogy to the Bessemer/Birmingham Division venue cases, it logically follows that mere residence in the Bessemer Division is in no way a ground for automatic disqualification, and, indeed, residence in the Bessemer Division in no way abrogates the general statutory qualification requirements of § 12-16-60. In fact, as I have stated, it can be argued that the Uniform Jury Selection and Service Act repealed all laws and parts of laws inconsistent with that Act, insofar as jury selection and service are concerned.
After the adoption of the Judicial Article and the rules of procedure, it should be clear that the perpetuation of divisions tended to further nonuniformity in many cases. See Ex parte Chrysler Corp., 659 So. 2d 113 (Ala. 1995), where the Court held:
659 So. 2d at 117. The reasoning used in that case is applicable to the present situation, in which a juror comes from the "other side of the line," but who meets all the general qualifications set out in § 12-16-60 and who was summoned for service in the Birmingham Division and was presumed to be qualified.
Finally, Rule 1 of the Alabama Rules of Civil Procedure states that the Rules of Civil Procedure shall be construed to assure the just, speedy, and inexpensive determination of every case on its merits. To interpret the procedural rules in a manner that would grant the plaintiff a new trial, under the facts and circumstances of this case, would violate the very spirit of Rule 1 and would be the antithesis of just, speedy, and inexpensive determination of this action on its merits.
COOK, Justice (concurring specially).
The trial court granted a new trial on the motion of the plaintiff, Johnny Hopper, on the ground that the cause had been tried before a jury that included James Lowden, whose place of residence, Hopper contended, did not qualify him to serve on the jury. Hopper contends that he did not discover this defect until after the verdict and judgment. Although I originally concurred in a judgment affirming the trial court's order granting a new trial, on application for rehearing I have reconsidered the arguments and issues presented. I concur fully in today's action reversing that order. The law in this state is, and should remain, that a party must object, before the jury is sworn, to the empaneling of a juror who resides outside the area "served by the court"[16] in order to raise the absence of residential qualification as a ground for a new trial, where the situs of the juror's residence is discoverable through due diligence.
Justice Maddox concurs specially in a two-part opinion. In Part II, he concludes that the trial court erred as a matter of law in granting a new trial, because, in his view, the statutory scheme bifurcating the Tenth Judicial Circuit into the Bessemer and Birmingham Divisions has been repealed. I write to express my disagreement with Justice Maddox's reasoning and conclusion in Part II of his special concurrence.
Jefferson County, which makes up the Tenth Judicial Circuit, is divided into two independent divisionsthe Bessemer and *1385 Birmingham Divisions. This division is brought about pursuant to Act No. 213, 1919 Ala. Loc. Acts 62; amended by Act No. 362, 1935 Ala. Loc. Acts 216, and Act No. 199, 1943 Ala. Loc. Acts 105. Act No. 362 ("the Act") "`in effect created two circuit courts within one county.'" Glenn v. Wilson, 455 So. 2d 2, 3 (Ala.1984). "`By the Act, the Circuit Court holding in Bessemer was given the same power exercised by the Tenth Judicial Circuit [holding in Birmingham], but it could exercise such power only for actions arising in its territorial boundary.'" Id. Section three of the Act specifically provides for the empaneling of grand juries, which are to "exercise and possess all of the jurisdiction and powers ... of the several Circuit Courts of this State, which said ... powers... shall be exclusive in, limited to, and extend over the ... territory in Jefferson County ... holding at Bessemer." Act No. 768, 1900-01 Ala. Loc. Acts 1854, amended by Act No. 446, 1903 Ala. Loc. Acts 472 and Act No. 172, 1915 Ala. Loc. Acts 241, established "the city court of Bessemer." Act No. 768, § 32, authorized the Bessemer City Court to "organize and empanel" both grand and petit juries, which juries were to be "drawn or selected from the qualified jurors residing in the ... territory" of the Bessemer Division. Pursuant to Act No. 217, 1915 Ala. Acts 279, the Bessemer City Court was "consolidated into the circuit court" of the Bessemer Division. Soon after these sections were enacted, it was settled that jurors hearing cases in the Bessemer Division were to be drawn "from a box containing only the names of those jurors residing in" the "territory" assigned to that division. Porter v. State, 20 Ala.App. 74, 74, 101 So. 97, 98 (1924); see also Junior v. State, 47 Ala.App. 518, 257 So. 2d 844 (1971), cert. denied, 407 U.S. 923, 92 S. Ct. 2473, 32 L. Ed. 2d 810 (1972); Hardeman v. State, 19 Ala.App. 563, 99 So. 53 (1924).
Justice Maddox correctly recognizes that "the Administrative Office of Courts ... follow[s] the traditional method for selecting... jurors ..., and that the Office of Jury Management follows the procedure that was originally outlined in the 1901 Act creating the Bessemer Division, in determining which jurors will serve in" the respective divisions. 681 So. 2d at 1375 n. 4. He proposes, however, that the statutory scheme outlined above, upon which the selection procedures are based, was repealed by Act No. 594, § 12, 1978 Ala. Acts 712, codified at Ala.Code 1975, §§ 12-16-55 to -64. Based on this premise, he concludes that the only residence requirement for jurors serving in either Jefferson County division is that they reside in Jefferson County. He would hold, therefore, that the fact that Lowden had not lived in the Birmingham Division for at least 12 months before trial was immaterial. I disagree with this conclusion because I disagree with his construction of Act No. 594.
Specifically, Act No. 594, § 12, simply provides: "All laws and parts of laws in conflict with the provisions of this act are to the extent of such conflict hereby repealed." "General repealer" clauses, of which § 12 is an example, are, "`in legal contemplation,... nullit[ies]. Repeals must either be expressed or result by implications.... [A] general repealing clause cannot be deemed an express repeal because it fails to identify or designate any act to be repealed.'" Merrell v. City of Huntsville, 460 So. 2d 1248, 1250 (Ala.1984) (emphasis added). "`It cannot be determinative of an implied repeal for it does not declare any inconsistency but conversely, merely predicates a repeal upon the condition that a substantial conflict is found under application of the rules of implied repeals.'" Merrell, 460 So. 2d at 1250-51. "If," moreover, the "inclusion [of a general repealer clause] is more than mere mechanical verbiage, it is more often a detriment than an aid to the establishment of a repeal, for such a clause is construed as an express limitation of the repeal to inconsistent acts." 1A Sutherland, Statutes and Statutory Construction § 23.08, at 329 (4th ed.1985) (emphasis added, footnotes omitted). Thus, if the statutory scheme limiting the jury pools to residents of the divisions in which the courts of Jefferson County sit has been repealed, it has been repealed only by implication.
The rules of construction in this respect are clear: "Repeal of a statute by implication is not favored ... and a prior act is not repealed unless provisions of a subsequent *1386 act are directly repugnant to the former." 460 So. 2d at 1251. Moreover, we have stated:
Vaughan v. Moore, 379 So. 2d 1240, 1241 (Ala.1979). "[L]egislative intent is a crucial factor in determining whether two statutes are irreconcilable so as to require repeal." Merrell, 460 So. 2d at 1251.
Legislative intent to repeal the statutory scheme at issue here is not discernible from Act No. 594. On the contrary, § 1 (codified at § 12-16-55), declares it to be "the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court." (Emphasis added.) This statute evidences on its face that the legislature had in view the special jury selection procedures already in place for Jefferson County. The use of the phrase "area served by the court," rather than simply "the county," indicates careful and deliberate drafting.
Indeed, Act No. 594, § 11, expressly and specifically repeals Ala.Code 1975, §§ 12-16-2; 12-16-4 and -5; 12-16-39; and 12-16-41 to 43. Given the maxim expressio unius est exclusio alterius, that is, "the expression of one thing is the exclusion of another," Black's Law Dictionary 521 (6th ed.1990), § 11 provides additional evidence that the legislature did not intend to repeal by implication vast, unspecified legislative schemes.[17]
Furthermore, nothing in Act No. 594 is inherently repugnant to Jefferson County's jury selection procedures. Sections containing the word "county" are equally applicable and adaptable to the selection procedures used in Jefferson County.
Considering these well-established rules of statutory construction, I refuse to construe Act No. 594 so broadly as to have it repeal the statutory scheme applicable to Jefferson County, lest I "legislate" by construction. Consequently, I concur in the holding and rationale of the majority, and I expressly disagree with the reasoning and conclusions expressed in Part II of Justice Maddox's special concurrence.
SHORES, J., concurs.
[1] The parties raise several other issues. However, because we resolve this case on this waiver issue, we do not reach the other issues argued by the parties.
[2] The record here indicates that the fact that a juror was a nonresident of the Birmingham Division was not actually discovered until after the trial. However, we observe that to dismiss the reasoning of Pogue could invite mischief. It would, perhaps, encourage a party who did know, or suspect, that a particular juror was a nonresident to gamble on the outcome of the trial, with the intent that if the party lost at trial, he or she might secure an opportunity to try the case before another jury.
[3] See §§ 12-16-59 and 12-16-60. I realize that § 12-16-55 uses the term "fair cross section of the population of the area served by the court," and some could interpret that term to apply to a division of a court. But if read in pari materia with the other sections of Act No. 594, especially § 12-16-60, which lists the qualifications of jurors and requires only that a juror be a resident "of the county," § 12-16-55 should be read to apply to the entire county.
[4] Although the "county" is the political subdivision referred to in Act No. 594, it is apparent from the record that the Administrative Office of Courts has followed the traditional method for selecting and summoning jurors for jury service, and that the Office of Jury Management follows the procedure that was originally outlined in the 1901 Act creating the Bessemer Division, in determining which jurors will serve in the Birmingham Division and which jurors will serve in the Bessemer Division. This 1901 Act provided:
"Be it further enacted, that all persons liable to jury duty residing in the territory herein described [the Bessemer Division], and whose names are not included in the lists or boxes for Jefferson County, shall be removed therefrom and placed in a separate box to be used for the said city court of Bessemer, ..."
Local Acts 1900-01, No. 768 § 36 (emphasis added).
In the subsequent act that established the circuit court of the Bessemer Division, this section was not changed. See Amended Local Acts 1935, No. 213.
According to the record, the Bessemer Division divides seven Jefferson County zip codes. An assistant court administrator and jury coordinator stated in a sworn affidavit that the Office of Jury Management in Jefferson County manually compares a master list of jurors with a list of the Bessemer households in the affected zip codes. The names of the potential jurors who live in the Bessemer Division are highlighted, and the master list is sent to the Administrative Office of Courts in Montgomery, where the information is put into a computer. This procedure, except for the new technology, is essentially the same as the procedure used in 1901 when the Bessemer Division was first established. The only differences in the 95-year-old procedure arise from the ratification of the Judicial Article, the adoption of the Uniform Jury Selection and Service Act, and the advent of the capacity to draw and summon jurors statewide by using the mainframe computer at the Administrative Office of Courts. Based on the provisions of the Uniform Jury Selection and Service Act, and in view of the administrative procedures that are now in use for selecting jurors, juror lists are now maintained, and jurors are summoned for service in the various circuits, by the Administrative Office of Courts.
I recognize that in some counties in Alabama there are two courthouses, as in Jefferson, Coffee, Winston, St. Clair, Talladega, Marshall, Tallapoosa, and Barbour Counties. The information I have received from the Administrative Office of Courts indicates that the circuit courts meet in both courthouses only in Jefferson, St. Clair, Barbour, Coffee, Marshall, and Tallapoosa Counties; juries are drawn from within the separate divisions only in Jefferson and Barbour.
The question of drawing jurors from a division within a county was specifically challenged, by a petition for the writ of mandamus, in Ex parte R.J. Reynolds Tobacco Co., et al., [1941760, August 30, 1995, petition denied]. I dissented in that case and prepared a written dissent. However, the written dissent was not entered of record. Subsequently, a second petition was filed in this action, Ex parte R.J. Reynolds Tobacco Co., et al., [1950091, January 31, 1996, petition dismissed]. I concurred specially in that second order, which dismissed the mandamus as moot, and appended my previously prepared dissent to my special concurrence. In that dissent, I noted that Act No. 594 essentially adopted the provisions of the Uniform Jury Selection and Service Act, and that it refers only to a "county" and not to court divisions within a county. Although the Court did not issue opinions in these two actions and the clerk's orders denying these petitions were not published, the orders and my special concurrence to the January 31, 1996, order, with my dissenting opinion attached, are part of the official record and are available through the clerk's office.
[5] Persons selected for juror service are electronically selected by the Administrative Office of Courts, and the summonses are mailed from the Administrative Office of Courts.
[6] The case action summary sheet shows that the case was first set for trial on January 24, 1994, and that it was reset for trial on August 1, 1994, and October 17, 1994, when it was actually tried.
[7] His Tyler Circle residence was within the city limits of Hoover, and it had the same zip code as his Chapel Creek Drive residence.
[8] Testifying at the hearing on the motion for new trial, Judge Arthur Hanes stated that, upon instructing the potential jurors on the location of the dividing line, he said that "[t]here are some unusual areas in the southern part of Jefferson County," and told jurors "at the end" if they had any questions about which division they lived in to come forward.
[9] Interestingly, Judge Hanes testified that he generally instructed the potential jurors as to how they could tell in which Division they lived, as follows:
"You are serving this week in the Tenth Judicial Circuit. The Tenth Judicial circuit consists of Jefferson County in its entirety. But Jefferson County is divided into two divisions, the Birmingham Division and the Bessemer Division, sometimes called the Bessemer Cut-off. You probably know whether you live in the Birmingham Division or the Bessemer Division. One way you can test it is where you buy your car tags or [pay your] property taxes. If that is in the Bessemer Courthouse, you probably live in the Bessemer Division."
As noted earlier, the challenged juror, Lowden, testified that he had bought his car tags at the Birmingham Division Courthouse.
[10] The challenged juror testified at the hearing:
"Q. If you had been personally asked point-blank, do you live in the Bessemer Cut-off, what would your position have been?
"A. I would have said no. Because my only knowledge would have been that it had something to do with the city of Bessemer."
[11] Because the division line passes through Hoover, this should have placed the plaintiff's experienced attorneys on notice that there might be a problem concerning whether Lowden was a resident of the Bessemer Division or of the Birmingham Division.
[12] See also, Watters v. Lawrence County, 551 So. 2d 1011 (Ala.1989). In Watters, this Court was faced with a post-trial challenge of two jurors based on their residence in a county other than the county where they served as jurors. The trial court denied the motion for a new trial, and this Court affirmed. The Court held:
"Failure to timely challenge a juror for cause may result in a waiver of the right to do so if the fact of disqualification is either known or, through the exercise of due diligence, should be known. Williams v. Dan River Mills, Inc., 286 Ala. 703, 246 So. 2d 431 (1971) (waiver resulted upon failure to timely challenge a juror for cause under a provision of Tit. 30, § 55, Code 1940, the predecessor of Ala.Code 1975, § 12-16-150)."
551 So. 2d at 1016.
[13] This Act was adopted after the ratification of the Judicial Article, the adoption of the Alabama Rules of Civil Procedure governing selection of juries, and the adoption of the procedures used by the Administrative Office of Courts for drawing juries throughout the state.
[14] As previously noted, in a subsequent act establishing the circuit court, Bessemer Division, this section was not changed. Amended Local Acts 1935, No. 213.
[15] I also believe that Act No. 195, Ala. Acts 1953, which provided for the selection of juries from a division of the Circuit Court of Barbour County, was repealed by this general repealer clause.
[16] See Ala.Code 1975, § 12-16-55 (declaring as "the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court").
[17] "According to this rule of construction, where a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its effect all those things not expressly mentioned." Champion v. McLean, 266 Ala. 103, 112, 95 So. 2d 82, 91 (1957). | July 12, 1996 |
d01d471c-ea60-4d5b-b044-c0e0441bd6bb | Ex Parte Hairgrove | 680 So. 2d 947 | 1950734, 1950735 | Alabama | Alabama Supreme Court | 680 So. 2d 947 (1996)
Ex parte Donald HAIRGROVE.
(Re Donald D. Hairgrove v. State).
Ex parte State of Alabama.
(Re Donald D. HAIRGROVE v. STATE).
1950734, 1950735.
Supreme Court of Alabama.
July 12, 1996.
James G. Curenton, Jr., Fairhope, for defendant.
Jeff Sessions, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for the State.
Prior report: Ala.Cr.App., 680 So. 2d 946.
KENNEDY, Justice.
1950734WRIT DENIED. NO OPINION.
MADDOX, ALMON, HOUSTON, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and SHORES, J., dissent.
*948 1950735WRIT DENIED. NO OPINION.
ALMON, HOUSTON, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX and SHORES, JJ., dissent.
MADDOX, Justice (concurring in 1950734; dissenting in 1950735).
I concur in denying the defendant's petition for certiorari review, but I would grant the State's petition and review the judgment of the Court of Criminal Appeals. That court reversed the defendant's conviction on the ground that the trial court had failed to properly inform the defendant about his right, at any stage of the proceedings, to withdraw his voluntary waiver of counsel. Rule 6.1(b), Ala.R.Crim.P.[1]
The State, as authorized by Rule 39(k), Ala.R.App.P., presented to the Court of Criminal Appeals a statement of additional facts relating to the waiver-of-counsel question, and it forcefully argues that the learned trial judge did not err. Based upon my review of the State's certiorari petition, the statement of additional facts presented in the State's Rule 39(k) petition, and the transcript of the colloquy between the trial court and Hairgrove, it appears to me that Hairgrove did not ask the court to withdraw his waiver of counsel, but rather insisted that the trial court grant him joint representation, that is, to require appointed counsel to serve as his co-counsel. A lawyer appointed by the trial court to advise Hairgrove asked to be allowed to withdraw as counsel and, in connection with his request to withdraw, filed an affidavit in which he said, "It is clear to counsel that Defendant intends to make a circus of his criminal prosecution ... and then pursue counsel for ineffective assistance." (R. 17).
I would grant the State's petition for certiorari review and consider what appears to me to be a case of first impression: Can a defendant who has knowingly and intelligently elected to represent himself or herself require the trial court to appoint a lawyer to act as co-counsel? I believe that the judgment of the Court of Criminal Appeals is wrong; therefore, I must respectfully dissent to the denial of certiorari review in this case.
HOOPER, C.J., concurs.
[1] The Court of Criminal Appeals stated, "At no point during this colloquy did the trial court inform Hairgrove that he [could] withdraw his waiver of his right to counsel." Hairgrove v. State, 680 So. 2d 946, 947 (Ala.Crim.App.1995). | July 12, 1996 |
22c16ee4-ff68-4880-9a8a-7ab4583423c2 | Anderson v. State | 686 So. 2d 381 | 1940507 | Alabama | Alabama Supreme Court | 686 So. 2d 381 (1996)
Ex parte State of Alabama.
Re Willie Lee ANDERSON
v.
STATE.
1940507.
Supreme Court of Alabama.
May 31, 1996.
*382 Jeff Sessions, Atty. Gen., and Kim B. Oliver and Cedric B. Colvin, Dep. Attys. Gen., for Petitioner.
John C. Robbins of Polson & Robbins, P.C., Birmingham, for Respondent.
KENNEDY, Justice.
Willie Lee Anderson was indicted for rape in the first degree. The trial court instructed the jury on the crimes of assault in the first, second, and third degrees as lesser offenses included in the rape charge. Anderson was found guilty of assault in the first degree and was sentenced to 10 years' imprisonment. The Court of Criminal Appeals reversed the conviction and remanded the case with instructions that the trial court set aside the first degree assault conviction, adjudge Anderson guilty of second degree assault, and sentence him accordingly. Anderson v. State, 686 So. 2d 378 (Ala.Crim. App.1994).
The facts underlying this case are as follows: The victim testified that Anderson was her former boyfriend and that his sister lived next door to her. On March 4, 1993, Anderson came to the victim's home while she was cooking dinner. While the victim was standing at her stove, Anderson hit her in the back of the neck and said, "I'm going to teach you a lesson, bitch." (R.T. 20.) Anderson grabbed one of the victim's kitchen carving knifes and held it to her neck, ordering her to go upstairs. (R.T. 21.) When they got upstairs, Anderson ordered the victim to take off all of her clothes, but she refused to do so. Anderson then stabbed the victim in her left thigh. She then removed her clothes.
At that point, the victim's four-year-old son came into the room. Anderson told the boy to lie down and, holding the knife to the victim's throat, ordered her to go downstairs. While they were downstairs, Anderson continuously hit the victim with his hand and with the handle of the knife, the victim testified, "in [her] eye and chest and everywhere." (R.T. 27.) The victim testified that after Anderson had beaten her so badly that she "couldn't even move," he then forced her to have sexual intercourse with him. (R.T. 29-30.)
According to the victim's testimony, Anderson left the house after assaulting her. The victim apparently passed out for a short while and when she awoke, she saw that *383 Anderson had returned and cleaned up the blood from the assault and had thrown away her stained clothes. (R.T. 31-32.) The victim then crawled upstairs to her bedroom and slept a while. (R.T. 32-34.) Upon awakening, she was unable to move because of the pain and could not call the police, because she did not have a telephone. (R.T. 33-35.) Early the next morning, she said, she "dragged" herself out of bed and called, through her window, to neighbors for help. (R.T. 34-35.)
Anderson testified that on March 4, 1993, the victim invited him into her house, where, he said, they talked, watched television, and drank wine together. Then, according to Anderson, they had consensual sex and afterwards got into a fight. Anderson admitted that he hit and stabbed the victim during the fight.
Dr. Robert Echols, the emergency room doctor who examined the victim early in the morning, testified that both of the victim's eyes were blackened and swollen. There was a large blood clot beneath her scalp, the left side of her face was swollen, and her left eardrum had burst. He testified that she had a trauma to the head consistent with a beating and that her mental capabilities were not quite normal, because of the head injury. (R.T. 77-78.) The victim had one fractured rib, abrasions on her neck and knees, and a stab wound in her left thigh. Dr. Echols characterized her several injuries as both "minor and severe." (R.T. 71.) Dr. Echols "packed" the stab wound, in accordance with the treatment for a deep puncture wound. (R.T. 87.) Dr. Echols's concern was that the wound could become infected because of the type of wound it was and because of the length of time it had taken for the victim to get to the hospital. The victim was released from the hospital on the evening following her morning admission.
Anderson argued on appeal to the Court of Criminal Appeals that he was indicted for one offense and was convicted of another and that assault in the first degree, the crime for which he was convicted, is not a lesser included offense as to rape, the crime with which he was charged. In the alternative, Anderson argued that even if assault is a lesser included offense as to rape, an instruction on assault was error because the prosecution failed to present a prima facie case of rape.
The Court of Criminal Appeals held that under the particular facts of this case, assault in the first degree was a lesser offense included in the offense of rape in the first degree. However, the court found that the victim had incurred no "serious physical injury," which is an element of assault in the first degree. That court reversed the conviction and remanded the case with instructions for the trial court to find Anderson guilty of assault in the second degree, stating that the State had presented sufficient evidence that the victim had sustained "physical injury," which is an element of assault in the second degree.
Judge Taylor dissented from the judgment of the Court of Criminal Appeals, on the grounds that if Anderson was to defend against a charge of assault in the first degree, which requires proof of an element in addition to the elements required to prove rape in the first degree, then he should have been put on notice of such a charge in the indictment. Judge Montiel dissented, stating that he felt the State had presented sufficient evidence of "serious physical injury," so as to support a first degree assault conviction; therefore, he felt, the conviction should not have been reversed.
The State petitioned for certiorari review, arguing that the Court of Criminal Appeals had erred in reversing the conviction on the basis that the victim did not suffer the serious physical injury required for a first degree assault conviction.
We must first consider whether assault in the first degree is a lesser offense included in rape in the first degree, under the particular facts in this case. Section 13A-1-9, Ala.Code 1975, provides in pertinent part that a defendant may be convicted of a lesser included offense if the lesser offense can be established by proof of "the same or fewer than all the facts required to establish the commission of the offense charged" or if the lesser offense "differs from the offense charged only in the respect that a *384 less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission."
We held in Ex parte Jordan, 486 So. 2d 485 (Ala.1986), that in determining whether an offense is a lesser included offense as to the crime charged, a court must consider the relationship of the two defining statutes involved, along with the facts of the particular case (rejecting the State's argument that vehicular homicide could never be a lesser included offense as to murder).
Turning to the statutes applicable in this case, we note that a male commits the crime of rape in the first degree if "[h]e engages in sexual intercourse with a female by forcible compulsion." § 13A-6-61(a)(1). An assault in the first degree occurs if, "[w]ith intent to cause serious physical injury to another person, [a person] causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument." § 13A-6-20(a)(1).[1]
Anderson argues that assault in the first degree requires proof of a serious physical injury, whereas rape in the first degree does not require proof of any injury. Therefore, he contends that first degree assault cannot be a lesser offense included in first degree rape, as one requires proof of an element the other does not require.
In Ex parte Jordan, we said that it would be improper to say that a set of facts establishing the commission of an offense can never also establish the commission of a lesser included offense: "The error in this approach is that [it] creates a broad rule which fails to take into account the facts of each case. [It] considers the potential relationship of the [two] statutes only in abstract terms and completely ignores the facts of this case and the indictment under which [the defendant] was charged. We find this application of § 13A-1-9 to these statutes and facts erroneous." 486 So. 2d at 488.
"[T]he state courts that have addressed the issue [of lesser included offenses] have unanimously held that a defendant is entitled to a lesser included offense where the evidence warrants it.... While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard." Beck v. Alabama, 447 U.S. 625, 635-37, 100 S. Ct. 2382, 2389, 65 L. Ed. 2d 392 (1980).
The rationale in Jordan and Beck is applicable here because the facts of this case support the charge of assault as well as the charge of rape. Had Anderson been convicted of rape in the first degree and if no jury charges on assault had been given, then Anderson would have been entitled to a new trial, at which the jury would be instructed on assault as a lesser included offense, because the evidence here would support such a charge. It is apparent in this case that the jury believed that the sexual intercourse between the victim and Anderson was consensual. However, the jury also obviously determined that Anderson subsequently assaulted the victim, and it found him guilty of the offense of assault in the first degree. Therefore, the trial court did not err in charging on assault. The evidence supported the charge.
We agree with the Court of Criminal Appeals that this case is distinguishable from Easley v. State, 369 So. 2d 69 (Ala.Cr.App. 1979). In Easley, the defendant was not entitled to a charge on assault as a lesser included offense as to rape. However, in Easley, the defendant denied having had any contact whatever with the victim. Therefore, the facts of Easley did not support a charge on assault.
We now turn to the issue whether the Court of Criminal Appeals correctly held that there was no "serious physical injury" to the victim. "Serious physical injury" is defined *385 as "[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." § 13A-1-2(9).
Dr. Echols's testimony indicated that the victim had a deep puncture wound from a knife; trauma to the head, along with various bruises and scrapes; a fractured rib; and a burst eardrum. He characterized some of her injuries as "severe." We note that the fact that the victim was released from the hospital the same day she was examined does not, alone, mean that her injury was not a serious physical injury. Based on Dr. Echols's testimony, a jury could have found that the victim's knife wound constituted "serious physical injury." Thus, the instruction relating to assault in the first degree and the conviction on that offense were supported by the evidence.
Based on the foregoing, we reverse the judgment of the Court of Criminal Appeals and remand this cause for an order or proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, INGRAM, and COOK, JJ., concur.
[1] The trial court charged the jury on the element of first degree assault under subsection (a)(1) and accordingly, that is the only subsection we will discuss. We note, however, that subsection (a)(4) of § 13A-6-20 provides that a person commits assault in the first degree if, in the course of a rape or the attempted commission of a first-degree rape, he causes serious physical injury to another person. | May 31, 1996 |
f8c80a76-4d09-4322-b944-15de824ba943 | Karrh v. BD. OF CONTROL OF RETIREMENT | 679 So. 2d 669 | 1930456, 1940352 | Alabama | Alabama Supreme Court | 679 So. 2d 669 (1996)
John M. KARRH
v.
The BOARD OF CONTROL OF the EMPLOYEES' RETIREMENT SYSTEM OF ALABAMA.
1930456, 1940352.
Supreme Court of Alabama.
June 14, 1996.
Frank M. Wilson of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, for Appellant.
William T. Stephens and William F. Kelley, Montgomery, for Appellee.
ALMON, Justice.
Former Judge John M. Karrh appeals to this Court for a de novo review, pursuant to § 12-18-2(c), Ala.Code 1975, of the decision of the Board of Control of the Employees' Retirement System of Alabama in which the Board voted to terminate his retirement benefits. After attaining a total of 18 years of creditable service as a district judge and then a circuit judge, Judge Karrh retired as judge of the Sixth Judicial Circuit, Tuscaloosa County, effective May 1, 1993, and began receiving retirement benefits. On September 29, 1993, an employee of the Employees' Retirement System wrote Judge Karrh a letter informing him of the "assessment" that he was "retired in error" and "should not be eligible to receive judicial retirement benefits prior to age 60." That decision was affirmed by a vote of the Board of Control on December 3, 1993, and Judge Karrh appealed to this Court. This appeal requires us to construe an ambiguity in a 1979 amendment to the Alabama Code and to decide whether a person who was serving as a district judge *670 before July 30, 1979, and who later became or becomes a circuit or appellate court judge, is eligible to retire after 18 years' service.
The judicial retirement fund is "administered by the Secretary-Treasurer of the State Employees' Retirement System under the supervision of the Board of Control of the said State Employees' Retirement System." § 12-18-2(a), Ala.Code 1975. Section 12-18-2(c) grants a judge aggrieved by a decision of the Board of Control a right to appeal to this Court, and provides that this Court "shall hear said appeal de novo." A court hearing a matter "de novo" decides the issues anew:
Rudolph v. State, 286 Ala. 189, 190, 238 So. 2d 542, 543 (1970).
After appealing to this Court, Judge Karrh filed a motion to remand the cause to the Board of Control for "that body to hold a hearing to consider the issue of Judge Karrh's retirement benefits after reasonable notice and to afford him an opportunity to present evidence and argument in support of his position." This Court granted that motion. Judge Karrh gave a deposition and identified pertinent documents. He thereafter appeared at a meeting of the Board of Control on November 16, 1994. The Board of Control, after considering his statements and the response of its staff, again voted to terminate Judge Karrh's benefits, but also, as before, voted to continue paying them during the pendency of this appeal. Judge Karrh filed a renewed notice of appeal. The parties compiled further evidence by affidavit, by deposition, and by the deponents' identification of documents, and the cause was submitted for this Court's decision.
This controversy concerns a 1979 amendment to the judicial retirement law. Act No. 79-566, 1979 Ala. Acts, p. 1015, was codified at Ala.Code 1975, §§ 12-18-40 and -41. Section 12-18-40 reads, in pertinent part:
Section 12-18-41 provides:
Section 12-18-6(b)(5) is part of article 1 of title 12, chapter 18. It allows a circuit judge to retire if he or she "[h]as served for not less than 18 years or three full terms or a time equal to three full terms as a circuit judge." The question before us is whether Judge Karrh and other district judges serving before July 30, 1979, are entitled to retire under § 12-18-6(b)(5) if they later became circuit judges (or appellate judges, see § 12-18-6(a)(5), also part of article 1).
Judge Karrh was appointed as a judge of the Tuscaloosa County Court on June 1, 1976, and, on January 16, 1977, became a judge of the district court of that county upon the implementation of the Judicial Article of the Alabama Constitution as amended by Amendment 328, Ala. Const.1901. See § 6.21(d) of Amend. 328; 1975 Ala. Acts, Act No. 1205, p. 2384. He was elected to a full term as district judge in 1980. He was elected as a judge of the Sixth Judicial Circuit in 1982 and, being reelected in 1988, served in that capacity until April 30, 1993. He *671 reached 18 years of creditable service on April 30, 1993, by purchasing credit in the judicial retirement fund for the time he had served as executive assistant to the Governor. See Act No. 91-795, 1991 Ala. Acts, p. 190.
Section 12-18-41 allows "Any person with service as a judge of a district court who assumes the office of circuit judge or [appellate judge] to receive creditable service for... time served as judge of a district or county court for inclusion toward retirement under Title 12, Chapter 18, Articles 1 and 2" (emphasis added). Thus, under the literal terms of § 12-18-41, any district judge who becomes a circuit or appellate judge may retire under the provisions of § 12-18-6, not under the amended provisions of § 12-18-40, even if he or she became a district judge on or after July 30, 1979.
To so construe the 1979 amendment would give later-elected district judges a benefit not available to later-elected circuit and appellate judges. If § 12-18-41 were read literally, it would allow a judge elected to the district court at any time, even after the effective date of Act No. 79-566, to serve for a time as a district judge, later become a circuit or appellate judge, and retire under the provisions of § 12-18-6, without regard to the exceptions of § 12-18-40. Such a result would create unworkable and unjust results: for example, a district judge elected in 1980 and then elected to the circuit court in 1986 and 1992 could retire upon completion of the term to which he or she was elected in 1992, without regard to age, whereas a circuit judge elected in 1980 and reelected in 1986 and 1992 could not retire until reaching age 60.
Ex parte Hayes, 405 So. 2d 366, 370 (Ala. 1981), quoting State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225, 233-34, 66 So. 2d 726, 731 (1953).
Section 12-18-41 comes from § 2 of Act No. 79-566; section 1 of that act adopted what is now § 12-8-40. Section 1 allows judges coming under its provisions to "receive and be entitled to all retirement benefits prescribed in Title 12, Chapter 18, Articles 1 and 2, Code of Alabama 1975, except as follows," and lists four exceptions, including the one at issue here. Section 2 allows retirement under Articles 1 and 2, without reference to the exceptions enacted in § 1. Section 2 of Act No. 79-566 specifically applies to district judges who later become circuit or appellate judges, and it allows them to count their service as district judges toward retirement as circuit or appellate judges under articles 1 and 2 of title 12, chapter 18. Section 2 of Act No. 79-566 is thus more specific as to the retirement of district judges under article 1 after they become circuit or appellate judges and will therefore govern over the general provisions of § 1 of that Act regarding the retirement of circuit and appellate judges who assume office on or after the Act's effective date. Where general and specific provisions of a statute conflict, the specific provisions govern over the general ones. Murphy v. City of Mobile, 504 So. 2d 243 (Ala.1987); Cooper Transfer Co. v. Alabama Public Serv. Comm'n, 271 Ala. 673, 127 So. 2d 632 (1961); State v. Elliott, 246 Ala. 439, 21 So. 2d 310 (1945); Ivey v. Railway Fuel Co., 218 Ala. 407, 118 So. 583 (1928); City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159 (1909).
However, to eliminate unworkable and unjust results and to effectuate the purpose of the Act as a whole, we construe § 2 of Act No. 79-566 to mean, when it says "any person with service as a judge of a district court," that any person with such service before the enactment of Act No. 79-566 on July 30, 1979, may retire without reference to the exceptions in § 1, and that any person beginning service as a district judge on or after that date will be subject to the exceptions of § 1, just as persons first beginning judicial service as circuit or appellate court judges on or after that date will be. Thus, circuit and appellate judges who have formerly served as district judges will be subject to the same provisions as circuit and appellate judges who have not formerly served as district judges: If they first assumed *672 judicial office before July 30, 1979, they may retire pursuant to article 1 of chapter 18 of title 12, without reference to the exceptions adopted in § 1 of Act No. 79-566. If they first assumed judicial office on or after that date, the exceptions in § 1 of that Act apply to them.
This construction recognizes the principle that statutes are to be construed as a whole, so as to harmonize their parts, if possible. McRae v. Security Pacific Housing Services, Inc., 628 So. 2d 429 (Ala.1993); Lee Optical Co. of Alabama v. State Bd. of Optometry, 288 Ala. 338, 261 So. 2d 17 (1972).
2A Singer, Statutes and Statutory Construction, § 46.05 (1992). The overall purpose of Act No. 79-566 was to limit several provisions of the judicial retirement law, but only as to persons becoming judges on or after the effective date of the act. Section 2 of Act No. 79-566 appears to give the benefit of the pre-existing retirement provisions to district judges who later became, or become, circuit or appellate judges, and to do so without reference to the restrictive provisions of § 1. However, such a construction would contravene the purpose of the statute as a whole, so we give § 2 the more limited construction we have expressed above, giving the pre-existing benefits only to persons who were district judges before the Act's effective date and who later became or may become circuit or appellate judges.
This construction is consistent with the construction that was uniformly given by various state officers and employees to Act No. 79-566 during the first 14 years after its passage. In compiling evidence for this appeal, Judge Karrh showed that from 1979 until after his retirement, Employees' Retirement System officers and attorneys had conveyed to him and other similarly situated judges the information that he and they would be eligible to retire and receive retirement pay upon completion of 18 years' service. This evidence shows that, when Act No. 79-566 was enacted and for many years thereafter, the Employees' Retirement System executives and attorneys responsible for administering the judicial retirement fund construed Act No. 79-566 as we construe it today. For example, Judge Samuel H. Monk of the Seventh Judicial Circuit testified that in the summer or fall of 1979, the Employees' Retirement System representative responsible for administering the Judicial Retirement Fund told him, when he was a district judge:
The evidence before us shows that Employees' Retirement System officials consistently construed §§ 12-18-40 and -41 in this manner until September 1993, when they informed Judge Karrh that he was "retired in error."
This interpretation was also followed by two attorneys general in two opinions, one issued by Attorney General Charles Graddick on June 17, 1985, Opinion No. 85-387, and the other issued by Attorney General Jimmy Evans on December 3, 1992, Opinion No. 93-67.
The Employees' Retirement System Board of Control now argues that Judge Karrh, or any other judge who was a district judge before July 30, 1979, but who later became judge of a circuit or appellate court, "assum[ed] office for the first time as a justice of the Supreme Court, judge of a court of appeals, or a circuit judge" on or after that date, and so are subject to the exceptions codified in § 12-18-40. We disagree.
On the contrary, we agree with the earlier interpretation by the Employees' Retirement System as to the resolution of the ambiguity created by § 12-18-41 and its interaction with § 12-18-40. The interpretation by which these judges are entitled to retire notwithstanding the restrictive provisions of § 12-18-40 is the only proper and just interpretation. *673 Two attorneys general, the Employees' Retirement System staff, and the judges who made inquiries and discussed the effect of the amendment both before and after its passage all interpreted the restrictive exceptions as not applying to any judges who assumed office before July 30, 1979.
For the foregoing reasons, we hold that § 12-18-40 does not apply to a district judge who assumed office before July 30, 1979, and who later became, or may become, a circuit or appellate judge, and that, therefore, such a judge may retire without regard to the restrictive provisions stated as exceptions in § 12-18-40, but that those restrictive provisions do apply to a district judge who assumed office on or after July 30, 1979. The action of the Board of Control terminating Judge Karrh's retirement benefits is reversed, and a judgment is hereby rendered for Judge Karrh affirming his right to retire according to the provisions of § 12-18-6(b)(5) and otherwise without regard to the exceptions stated in § 12-18-40(1) through (4).
REVERSED AND JUDGMENT RENDERED.
HOOPER, C. J., and MADDOX, SHORES, and HOUSTON, JJ., concur.
KENNEDY, COOK, and BUTTS, JJ., recuse.
[1] For simplicity, we shall refer to these provisions pertaining to Justices of the Supreme Court or Judges of a Court of Appeals as referring generally to "appellate judges." | June 14, 1996 |
9053bb1c-6f48-40d8-8413-ecda0bf58ae3 | Ex Parte Smith | 683 So. 2d 431 | 1941820 | Alabama | Alabama Supreme Court | 683 So. 2d 431 (1996)
Ex parte Alton Wayne SMITH.
(Re Alton Wayne SMITH v. ALABAMA AVIATION AND TECHNICAL COLLEGE, et al.
1941820.
Supreme Court of Alabama.
June 28, 1996.
Rehearing Denied October 25, 1996.
*432 Craig M. Cornish of Cornish and Dell'Olio, Colorado Springs, CO; and Mark Sabel of Sabel & Sabel, P.C., Montgomery, for Petitioner.
Jeffery A. Foshee and Edward M. George of Foshee & George, L.L.C., Montgomery, for Shirley Woodie, Fred Gainous, and John Fergus.
*433 MADDOX, Justice.
We granted certiorari review in order to address a single legal issue: The preclusive effect of an administrative determination of a constitutional claim, when the aggrieved person does not seek judicial review of the administrative decision as authorized by law.
Alton Wayne Smith was a tenured instructor at the Alabama Aviation and Technical College ("AATC"), a state institution of higher learning. In August 1991, Smith was terminated as an avionics instructor, after having served for 14 years in that position. The reasons given for his termination were violations of the sick leave policy, numerous absences from classes he was teaching, and faculty and student complaints. Smith appealed this decision to an administrative review panel, arguing, among other things, that he had been fired for exercising his right to free speech. Specifically, Smith claimed he had been fired for voicing criticism of the institution's administration and curriculum and for writing letters to former Governor Guy Hunt complaining of what he considered to be fraudulent and wasteful practices at AATC. At the hearing conducted by the review panel, Smith raised these arguments, but was unsuccessful. The review panel found that Smith had been terminated for good cause and affirmed his termination.[1] The panel did not mention Smith's constitutional claims, apparently rejecting them. Smith did not appeal the decision of the administrative review panel to the appropriate circuit court, as allowed by § 41-22-20(k)(1), Ala.Code 1975, but instead filed this present action against AATC and three administrators.[2] In his action, he claimed damages based on alleged breach of contract, breach of an implied covenant of good faith and fair dealing, intentional infliction of emotional distress, and retaliatory discharge, and damages based on 42 U.S.C. § 1983. Smith's § 1983 claims were based on the assertion that his termination violated his rights to freedom of speech and due process. The trial judge entered a summary judgment in favor of the defendants on all of Smith's claims, and he appealed to the Court of Civil Appeals.
Smith raised but one issue in the Court of Civil Appeals: whether the trial court erred in dismissing his § 1983 claims against the three administrators. The Court of Civil Appeals affirmed the dismissal of the § 1983 claims, holding that they were barred by the doctrine of collateral estoppel, i.e., issue preclusion. Smith v. Alabama Aviation & Technical College, 683 So. 2d 426 (Ala.Civ. App.1995). The Court of Civil Appeals held that the doctrine of collateral estoppel barred relitigation of Smith's claim that he had been fired for exercising his right to free speech. In determining that Smith was precluded from raising this constitutional issue, the court applied the elements for issue preclusion applicable to administrative hearings, as announced by this Court in Ex parte Shelby Medical Center, Inc., 564 So. 2d 63 (Ala.1990). In that case, this Court held that for the doctrine of collateral estoppel to apply to an issue raised in an administrative proceeding, the following elements must be present:
564 So. 2d at 68 (quoting Pantex Towing Corp. v. Glidewell, 763 F.2d 1241, 1245 (11th Cir.1985)). The Court of Civil Appeals, finding *434 that these elements had been satisfied, ruled that Smith was precluded from raising the free speech and due process issues in his § 1983 action.
In his petition, Smith argues that the judgment of the Court of Civil Appeals is erroneous, stating that issue preclusion cannot be applied to his claim under the facts and circumstances of this case. First, Smith argues that federal law prohibits the application of issue preclusion in § 1983 actions where the issue to be precluded is one from an unreviewed decision of an administrative panel. Second, he argues that the administrative review panel, which consisted of three lay members, did not have the requisite legal competence to decide whether Smith had been terminated in violation of his constitutional rights. Third, he claims that the panel's decision did not adequately address his constitutional claims so as to preclude these constitutional issues in this subsequent action. We will address these issues in the order in which they have been presented.
Smith's initial contention is that federal law prohibits the application of issue preclusion in a § 1983 action, where the issue to be precluded has been determined by an unreviewed decision of an administrative panel and involves claims of unconstitutional termination of employment. Although Smith is correct that a federal court would not bar this claim on the grounds of issue preclusion, his argument that federal law prohibits application of collateral estoppel in this scenario is misplaced. It is well established that a federal court will not preclude litigation of constitutional issues when those issues have been raised in an unreviewed decision of a state administrative agency. University of Tennessee v. Elliott, 478 U.S. 788, 106 S. Ct. 3220, 92 L. Ed. 2d 635 (1986); Migra v. Warren City School District Bd. of Educ., 465 U.S. 75, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984); Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982); Carlisle v. Phenix City Bd. of Educ., 849 F.2d 1376 (11th Cir.1988); Gjellum v. City of Birmingham, 829 F.2d 1056 (11th Cir.1987); Edmundson v. Borough of Kennett Square, 4 F.3d 186 (3d Cir.1993). See also, McDonald v. City of West Branch, 466 U.S. 284, 104 S. Ct. 1799, 80 L. Ed. 2d 302 (1984) (Supreme Court refused to give preclusive effect to constitutional issues raised in an unappealed arbitration decision). However, Smith is incorrect in his assertion that federal law bars the application of preclusion doctrines in these cases. The federal cases addressing this issue have not held that the United States Constitution prohibits the application of issue preclusion by a court in a subsequent action by a plaintiff who had raised the constitutional issues at an administrative hearing concerning his termination. Rather, these cases stand for the proposition that the federal common law doctrine of collateral estoppel will not be applied in federal forums when the decisions on the constitutional issues to be precluded have not been judicially reviewed. See, e.g., Carlisle v. Phenix City Bd. of Ed., 849 F.2d 1376 (11th Cir.1988). Therefore, there is no federal constitutional restraint placed on the states in regard to how they may fashion their preclusion rules in relation to this issue.
Next, Smith contends that collateral estoppel should not be applied in this action, because, he says, the administrative review panel, which consisted of three nonlawyers, did not have the requisite legal training to competently adjudicate these claims; he argues that the decision of the panel did not adequately address these constitutional issues, so as to preclude adjudication of these issues in the subsequent action. This argument seems to mirror the rationale utilized by federal courts in holding that preclusive doctrines will not be applied to unreviewed administrative review panel decisions involving claims of unconstitutional terminations. See, Edmundson v. Borough of Kennett Square, 4 F.3d 186 (3d Cir.1993). The federal cases have articulated concerns that an administrative panel is not equipped with the legal training to adequately adjudicate these issues. Although there seems to be merit in Smith's argument, especially given that Smith has averred that he was terminated for exercising his First Amendment rights, this contention is unpersuasive, considering that he did not appeal the decision of the review panel, as he was allowed to do by § 41-22-20(k)(1), Ala.Code 1975.
*435 In support of his assertion that his constitutional claims were not "actually litigated and determined in the administrative proceedings," as required under the test announced in Ex parte Shelby Medical Center, Inc., supra, Smith contends that the administrative review panel was not equipped to adequately determine whether he had been terminated for exercising his right to free speech. At first glance, this argument appears to be valid. The Supreme Court of the United States has been clear in its holdings concerning the appropriate standards for determining whether a plaintiff has been unconstitutionally terminated for exercising his or her First Amendment Rights. In order for a plaintiff to prevail on such a theory, the plaintiff must show: 1) that the alleged conduct was constitutionally protected and 2) that the conduct was a "substantial" or "motivating" factor in the review panel's decision to affirm the termination of employment. Once this standard has been met, the review panel may defeat this charge by showing that it would have affirmed the dismissal of the employee even in the absence of the protected conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471 (1977). A look at this test reveals that Smith's contention that the review panel could not adequately determine his claim is correct. In the two-step test, one must determine first whether the speech is "constitutionally protected" and then determine if the speech was a "substantial" or "motivating" factor in the decision to terminate. Whether the employee has satisfied this test cannot be adequately determined by a review panel composed of three lay persons, because proper application of this test requires a legal education. In Edmundson v. Borough of Kennett Square, 4 F.3d 186 (3d Cir.1993), the Court of Appeals for the Third Circuit specifically addressed this issue as follows:
Edmundson, 4 F.3d at 192-93. We agree with Smith's argument that the review panel could not adequately determine the constitutional issues presented to it and that there has been no showing that the panel did apply the required test. His § 1983 claims are nevertheless barred, because he had a right to appeal the ruling of the review panel to the appropriate circuit court, under § 41-22-20(k)(1), Ala.Code 1975, but did not do so.
Section 41-22-20 provides for a judicial review of the decisions of administrative agencies, when the decisions of such agencies are final and binding. § 41-22-20(a), Ala. Code 1975. Being a tenured instructor at AATC, Smith correctly appealed his termination to a review panel, pursuant to § 36-26-105, Ala.Code 1975, but because the decision of the review panel is considered final and binding,[3] the only remedy available to Smith was to appeal the panel's decision to the appropriate circuit court. A reviewing circuit court "may reverse or modify the decision [of an administrative review panel] or grant other appropriate relief" if it finds that "substantial rights of the petitioner have been prejudiced because the agency action is... [i]n violation of constitutional or statutory provisions." § 41-22-20(k), Ala.Code 1975. Smith did not appeal the decision of the review panel to the circuit court; rather, he brought this action in order to recover damages for wrongful termination. Therefore, he waived his right to appeal the decision of the review panel.
If he had appealed the decision of the review panel to the appropriate circuit court, Smith could have ensured that his constitutional claims would be properly adjudicated. *436 In reviewing a claim that an employee has been terminated for exercising the right to free speech, an appellate court must make an independent examination of the whole record, in order to ensure that the judgment of an administrative review panel does not constitute a forbidden intrusion on the field of free expression. Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 104 S. Ct. 1949, 1958-59, 80 L. Ed. 2d 502 (1984). This is a rule of Federal constitutional law, reflecting the conviction that judges must exercise independent review in order to preserve these liberties, and this rule is binding upon state appellate courts. Bose Corp., 466 U.S. at 510, 104 S. Ct. at 1964-65. Therefore, a circuit court, acting in an appellate capacity, would be required to make a de novo review of any First Amendment claims raised by the terminated employee. Thus, there is an appropriate procedure for an employee to follow in order to ensure that his or her constitutional claims are reviewed by a jurist possessing the requisite legal competence.
These appellate procedures ensure that the aggrieved employee will have the opportunity to raise his or her constitutional claims in a court of law, where such claims will be determined by a person having the requisite legal competence. Smith did not pursue his statutory remedy by appealing the ruling of the administrative review panel. His failure to appeal the ruling of the review panel to the appropriate circuit court acts as a waiver of any right to relitigate these issues, because the circuit court could have adequately determined the constitutional issues raised by him.
Smith's request that this Court adopt the federal view of issue preclusion in this situation is unpersuasive. The doctrines of collateral estoppel and res judicata are applied to encourage judicial economy by allowing issues, including constitutional issues, to be decided in a single proceeding, so that there can be a final resolution of the conflict between the parties. Failure to apply these doctrines would frustrate the purposes of the Alabama Rules of Civil Procedure, which are designed "to secure the just, speedy and inexpensive determination of every action" on its merits. Rule 1(c), Ala. R. Civ. P.
Under the provisions of law, an aggrieved person, such as Smith, who believes that the decision of a review panel did not adequately or correctly adjudicate his or her constitutional claims can appeal that decision to the appropriate circuit court, as provided in § 41-22-20, Ala.Code 1975. To allow a plaintiff to raise the same issues in a subsequent lawsuit after having elected not to appeal from the administrative ruling would frustrate efforts to provide an orderly administration of justice and could encourage one to relitigate issues rather than have those issues finally resolved.
Based on the foregoing, we affirm the judgment of the Court of Civil Appeals.
AFFIRMED.
HOOPER, C.J., and SHORES, HOUSTON, KENNEDY, INGRAM, and COOK, JJ., concur.
[1] The decision of the review panel read in its entirety:
"The Employee Review Panel has decided to uphold the termination of the employment of Mr. Alton Wayne Smith by the Alabama Aviation [and] Technical College in Ozark, Alabama.
"The panel found sufficient testimony and evidence that there were reasons for this termination of employment on the grounds of `other good and just causes' and failure to perform duties [in] a satisfactory manner."
[2] The three administrators named in the action were Shirley Woodie, president of AATC; John Fergus, dean of instruction; and Chancellor Fred Gainous.
[3] § 36-26-106, Ala.Code 1975. | June 28, 1996 |
897f3a19-b85a-45c0-a2ab-184bb9330011 | Ex Parte AmSouth Mortg. Co., Inc. | 679 So. 2d 251 | 1950550 | Alabama | Alabama Supreme Court | 679 So. 2d 251 (1996)
Ex parte AmSOUTH MORTGAGE COMPANY, INC.
(In re Madelaine B. STEWART v. AmSOUTH MORTGAGE COMPANY, INC.).
1950550.
Supreme Court of Alabama.
May 31, 1996.
*252 J. Knox Argo, Montgomery, for petitioner.
Allen W. Howell of Shinbaum & Howell, Montgomery, for respondent.
HOUSTON, Justice.
This case involves a contest between a payor (AmSouth Mortgage Company, Inc.) and the beneficiary of the payment (Madelaine B. Stewart) wherein AmSouth seeks, under equitable principles, repayment of the moneys it paid to satisfy a debt of Stewart.
The following statement of pertinent, undisputed facts is taken from the opinion of the Court of Civil Appeals:
Stewart v. AmSouth Mortgage Co., 679 So. 2d 247, 248-49 (Ala.Civ.App.1995).
The Court of Civil Appeals reversed the trial court's holding that AmSouth was equitably entitled to a security interest in the entire piece of property in question. The Court of Civil Appeals based its decision on its determination that parties who are culpably negligent are not entitled to relief under a quasi-contract or unjust enrichment theory *254 that is, that "the equitable doctrines that might, under other circumstances, afford relief are unavailable here because of AmSouth's culpable neglect and the mother's freedom from fault." 679 So. 2d at 251. The Court of Civil Appeals also reversed the trial court's holding that the mother was the sole owner of the property, which she had held with her deceased daughter pursuant to a deed creating a joint tenancy with right of survivorship. According to the Court of Civil Appeals, when the daughter mortgaged the property, she severed the joint tenancy, destroyed the survivorship provision, and created a new tenancy, from which both the mother and the daughter acquired an undivided one-half interest in the property as tenants in common, with only the daughter's interest being subject to the AmSouth mortgage.
Neither party sought certiorari review of the second holding. Rather, only AmSouth sought certiorari review, and only on the issue whether it was equitably entitled to a security interest in the entire piece of property in questionthat is, the issue whether AmSouth's negligence in failing to discover that the mother was co-owner of the property with her daughter and to have the mother sign the mortgage on the property prevents the application of the traditional equitable remedies of restitution or subrogation that would enable AmSouth to recover the $84,201.71 it paid to Wachovia with the mother's knowledge and for the benefit of the mother.
Although AmSouth concedes that the closing attorney was negligent and that his negligence resulted in his failure to discover that the deed did not convey the entire title to the daughter, AmSouth nonetheless contends that, in this case, the attorney's negligence does not bar the application of the doctrine of equitable subrogation based upon a "money had and received theory" and does not justify conferring upon the mother the windfall it says she seeks.[1]
The mother relies on the following statement as governing in cases that involve equitable lien principles:
Costanza v. Costanza, 346 So. 2d 1133, 1136 (Ala.1977), quoted with approval in Lewis v. Johnson, 507 So. 2d 918 (Ala.1987); Azalea City Motels, Inc. v. First Alabama Bank of Mobile, 551 So. 2d 967 (Ala.1989). The mother also maintains that to be entitled to equitable subrogation, the lender must have been ignorant of the intervening lien. She also maintains that there was no intervening equitable lien, because, she says, equitable liens can arise under Alabama law only when improvements or expenditures are made in good faith and under mistake as to title and cannot arise where expenditures are made with knowledge of the real or true state of the title. The mother also contends that because AmSouth knowingly accepted a mortgage from her daughter based on her credit and her qualifications, AmSouth is not entitled to an equitable lien. The evidence, at most, the mother insists, showed only passive conduct on the part of the mother, which, she says, is insufficient under Alabama law to justify the imposition of an equitable lien.
AmSouth argues that the cases relied on by the Court of Civil Appeals to support its holding that "culpable negligence" disqualifies a party from obtaining equitable relief are distinguishable, correctly pointing out that those cases involved innocent third parties who would have been harmed if the negligent plaintiff had obtained the relief sought. AmSouth also points out that the cited cases are not "money had and received" cases or cases seeking equitable liens upon a *255 "money had and received" theory, but instead are cases involving bona fide improvers of land. We agree with AmSouth that the cases relied upon by the Court of Civil Appeals should not be applied to bar equitable relief under the particular facts of this case. Both of the cases the Court of Civil Appeals cited as establishing a general "culpable negligence" bar to equitable relief, Manning v. Wingo, 577 So. 2d 865 (Ala.1991), and Gresham v. Ware, 79 Ala. 192 (1885), involved efforts to recover costs of substantial improvements to land made by parties who thought that they had good title to the property when they made the improvements. Interestingly, though, in Manning, 577 So. 2d at 869, this Court, after denying any relief based upon traditional equitable remedies, granted relief to the improving party based upon a "balancing of the equities" theory:
The law of restitution was created with the purpose and design of forcing a defendant to return benefits that it would be unjust to allow the defendant to keep; the law of restitution is not intended to compensate the plaintiff. Recovery for "money had and received" is one of the principal categories of restitution. See Davis, Tilley's Alabama Equity, §§ 12-1 and 12-2, p. 277-79 (3d ed. 1994).
Id., at 277-78, citing Murphree Ins. Agency v. Pinnington, 201 Ala. 500, 78 So. 854 (1918), and Blackwood v. Rutherford, 212 Ala. 630, 103 So. 689 (1925). (Emphasis added.)
If this is not a case where there was at least an "implied request" on the part of the defendant that the plaintiff pay her debt, then there probably could never be such a case. The mother was present at the closing, and she asked AmSouth's attorney if it was necessary for her to sign the papers. Obviously, the mother was interested in getting her debt to Wachovia paid off and fully consented to that payment.
The "culpable neglect" the Court of Civil Appeals found consisted solely of AmSouth's lawyer's failure to look at the deed before the closing. There was no culpability associated with this failure. This act of simple negligence was not intended to harm the mother, nor did it harm her; and it did not confer a benefit on AmSouth. Rather, it was the mother's actions taken in an attempt to benefit from AmSouth's mistake that caused this controversy.
If all persons who negligently confer an economic benefit upon another are disqualified from equitable relief because of their negligence, then the law of restitution, which was conceived in order to prevent unjust enrichment, would be of little or no value. However, it is uniformly accepted by courts throughout this country that a payor's negligence in the payor-versus-beneficiary situation does not disqualify the payor from obtaining equitable relief unless the beneficiary has been damaged by the payor's negligence. See Restatement of the Law of Restitution, § 59, p. 232 (1937):
The comments to § 59 state:
See, Douthwaite, Attorney's Guide to Restitution (1977), § 9.1, "Defenses," p. 361; Palmer, The Law of Restitution, vol. III, § 16.3, "The Effect of Negligence," pp. 462-63. A contrary result "would be curious indeed." Palmer, The Law of Restitution, at 462-63. The mother suffered no harm or damage as the result of AmSouth's negligence; it would be inequitable to allow her to retain the benefit of the payment.
In denying AmSouth's request for equitable relief, the Court of Civil Appeals confused the law of restitution with our law dealing with one's good-faith improvements to another's land and, therefore, erroneously allowed the mother to assert AmSouth's carelessness as a justification for retaining the benefit conferred upon her. We reverse the judgment of the Court of Civil Appeals and remand the case for an order or proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, INGRAM, and COOK, JJ., concur.
BUTTS, J., concurs in the result.
[1] In Count I of its counterclaim, AmSouth specifically alleges that the mother "owes AmSouth $84,201.71 for money had and received ... paid by AmSouth [to Wachovia] for the benefit of [the mother]." | May 31, 1996 |
76061d6c-41cc-4d6e-8b36-508ce2486875 | Ex Parte State Dept. of Revenue | 683 So. 2d 980 | 1950195 | Alabama | Alabama Supreme Court | 683 So. 2d 980 (1996)
Ex parte STATE DEPARTMENT OF REVENUE.
(Re LL & E PETROLEUM MARKETING, INC. v. STATE DEPARTMENT OF REVENUE).
1950195.
Supreme Court of Alabama.
June 7, 1996.
Rehearing Denied September 6, 1996.
*981 Jeff Sessions, Atty. Gen., Ron Bowden, Asst. Atty. Gen. and Chief Counsel for Department of Revenue, and John J. Breckenridge, Asst. Atty. Gen. and Asst. Counsel for Department of Revenue.
Joseph G. Stewart, F.A. Flowers III and Gregory F. Harley of Burr & Forman, Birmingham, for Respondent.
Bruce P. Ely and Michael J. Valezis of Tanner & Guin, P.C., Tuscaloosa, for Business Council of Alabama, Amicus Curiae.
Jerry L. Bassett of Legislative Reference Service and as Code Commissioner and Robert L. McCurley, Jr., representing himself as director of the Alabama Law Institute, both supporting the position of the State Department of Revenue, Amici Curiae.
INGRAM, Justice.
This case involves the statutory construction of a specific provision of Alabama's Gasoline Excise Tax Act (hereinafter the "Act"). Specifically, is the particular kind of naphtha[1] involved in this case included within the Act's definition of "gasoline," codified at Ala. Code 1975, § 40-17-30(1)?
For the procedural history and a statement of the facts of this case, see the opinion of the Court of Civil Appeals. LL & E Petroleum Marketing, Inc. v. State Department of Revenue, 683 So. 2d 978 (Ala.Civ.App. 1995).
At the outset, we note that neither the Act passed by the legislature nor the original volume of the 1975 Code contained a comma after the word "naphtha" in § 40-17-30(1). That subsection, defining "gasoline," read: "GASOLINE. Gasoline, naphtha and other liquid motor fuels or any device or substitute therefor commonly used in internal combustion engines...." However, in the 1993 replacement volume for Title 40, the Michie Company added a comma after the word "naphtha." Citing State v. Marshall, 14 Ala. 411 (1848), the Court of Civil Appeals stated, "[Where] the codified version of an act of the *982 legislature varies from the act as adopted, the act controls." 683 So. 2d at 979. Based on this statement from Marshall, that court concluded that the 1993 version (with the inclusion of the comma) did not apply and further determined that the "naphtha" involved in this case was not included in "gasoline," as that word was defined in the Act. Specifically, it concluded that the term "other liquid motor fuels" modifies and restricts the word "naphtha," and that because the naphtha at issue here was of a type not suitable for use as a motor fuel and not commonly used in internal combustion engines, it was not "gasoline" and therefore was not subject to the gasoline excise tax. We granted the Department of Revenue's petition for a writ of certiorari.
This Court has held that, by the process of adopting the entire Code, the legislature repeals any portion of the original legislation and prior codification not present in that adoption. See Ex parte Coker, 575 So. 2d 43 (Ala.1990). In other words, the adoption of the entire Code supersedes the original enactments and any prior codification. After this Court decided Coker, the legislature refined the codification process and began the current practice of annually codifying legislation. Under this new procedure, the Code commissioner continually reviews the manuscript of the Code and directs the Code publisher to publish replacement volumes and an annual supplement that incorporates into the Code the most recent acts of a general and permanent nature. Once the annual supplement and the replacement volumes are published, they are reviewed by the Code commissioner, who prepares an annual codification bill to adopt the replacement volumes and annual supplement. This Court, however, has not considered the question whether this process has the same effect as a codification of the entire Code for the purpose of resolving conflicts between the Code and the original act. In other words, we have not determined if these cumulative supplements also supersede the original enactment. Nevertheless, because we find that the 1993 supplement is not applicable here, we need not address this issue now. Furthermore, we are not convinced that the placement of the comma after the word naphtha makes any difference in the interpretation of this provision.
We agree with the Court of Civil Appeals that the 1993 supplement is not applicable here, but not for the reason stated by that court. The legislature adopted the replacement volume containing § 40-17-30(1) on April 5, 1994. See Act No. 305, § 1, 1994 Ala.Acts. The Governor also signed the bill on that day. The sales of naphtha made the basis of this action occurred almost two years before that date. Therefore, we need not determine whether the 1993 version of § 40-17-30(1) contained in the replacement volume actually superseded the original act. That version does not apply to this case because, even if it did supersede the original act, it did so after the sales, as well as after the complaint in this case was filed. Furthermore, as noted above, we are not convinced that the addition of the comma makes any difference in the interpretation of this provision.
Now, we must determine whether naphtha that is not used for motor vehicle purposes is within the statutory definition of "gasoline," for purposes of the excise tax on gasoline.
The Alabama gasoline tax is levied on the sale, use, consumption, distribution, storage, or withdrawal of gasoline in Alabama. Section 40-17-30(1) defines "gasoline" as "[g]asoline, naphtha and other liquid motor fuels or any device or substitute therefor commonly used in internal combustion engines." There is no dispute that the naphtha at issue is a highly volatile hydrocarbon not commonly used in internal combustion engines.
LL & E argues that the naphtha at issue is not included in the statutory definition of "gasoline," because, it argues, this naphtha is not used in internal combustion engines. The commissioner of revenue, the chief administrative law judge, and the circuit court disagreed with this argument and concluded that the plain wording of the statute must govern and that § 40-17-30(1) clearly includes naphtha as "gasoline," without qualification as to how it is commonly used. We agree.
*983 The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Gholston v. State, 620 So. 2d 719 (Ala.1993). Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says. IMED Corp. v. Systems Engineering Associates Corp., 602 So. 2d 344 (Ala.1992).
Section 40-17-30(1) defines "gasoline" in three parts: "[1] gasoline, [2] naphtha and [3] other liquid motor fuels or any device or substitute therefor commonly used in internal combustion engines." Gasoline and naphtha are included within the definition regardless of how they are used or intended to be used. The phrase "commonly used in internal combustion engines" does not relate to gasoline or naphtha, but rather modifies only the phrase "and other liquid motor fuels or any device or substitute therefor." Consequently, because the legislature specifically included "naphtha" within the definition of "gasoline," we hold that naphtha must be considered to be gasoline for purposes of the excise tax. The plain wording of the statute must govern, and this section clearly includes naphtha as gasoline, without qualification as to how it is commonly used. This construction is further supported by Ala.Code 1975, § 40-17-31(a), which provides that the excise tax is levied on "any use" of gasoline in this state.
(Emphasis added.)
We also point out that it is well established that in interpreting a statute, a court accepts an administrative interpretation of the statute by the agency charged with its administration, if the interpretation is reasonable. Alabama Metallurgical Corp. v. Alabama Public Service Commission, 441 So. 2d 565 (Ala.1983). Absent a compelling reason not to do so, a court will give great weight to an agency's interpretations of a statute and will consider them persuasive. Moody v. Ingram, 361 So. 2d 513 (Ala.1978).
The judgment of the Court of Civil Appeals is reversed and the case is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and SHORES, HOUSTON, COOK, and BUTTS, JJ., concur.
MADDOX and KENNEDY, JJ., dissent.
MADDOX Justice (dissenting).
In construing the provisions of Alabama's Gasoline Excise Tax Act, and specifically the provisions of § 40-17-30(1), Ala.Code 1975, which defines "gasoline" for the purposes of that Act, the majority holds that the Legislature intended to impose an excise tax on "naphtha," whether it was used as a liquid motor fuel[2] or not. In doing so, the majority concludes that the Legislature's definition of "gasoline" encompasses all forms of naphtha. I disagree.
Judge Yates, writing for the Court of Civil Appeals, examined the statute and held that the Legislature intended to levy the excise tax on naphtha only when it was used as a liquid motor fuel. She ascertained legislative intent by noting the placement of a particular comma and the use of the word "other" in the definitional part of the statute.[3] I agree *984 with the Court of Civil Appeals in its determination of legislative intent, but not because of the placement of the comma or the effect of any legislative enactment of the Code commissioner's changes to the statute.
This Court has held that "[i]n the area of statutory construction, the duty of a court is to ascertain the legislative intent from the language used in the enactment." Parker v. Hilliard, 567 So. 2d 1343, 1346 (Ala.1990). The majority cites Ex parte Coker, 575 So. 2d 43 (Ala.1990), for the proposition that "infirmities of legislative procedure in enacting an original act are cured when that act is incorporated into a code and the code is adopted by the legislature." Coker, 575 So. 2d at 46. The Alabama Law Institute has filed an amicus brief in this case, asking us not to change the rule that when the Legislature subsequently adopts a Code containing a change in a statute that was made by the Code commissioner, we assume that the Legislature intended to make the change. That is sound law, but there is no need to apply that principle here, in my opinion, because I can ascertain the legislative intent from a reading of the statute itself, with or without the comma.
It is clear to me that the use of the word "other," which follows the word "naphtha" in § 40-17-30(1), Ala.Code 1975, restricts the term "naphtha," for tax purposes, to that naphtha that is used as a liquid motor fuel only. All parties agree that the particular naphtha in question here is not suitable for use as a motor fuel.
The Department of Revenue argues that its administrative interpretation of Alabama's Gasoline Excise Tax Act allows the Department to impose the tax on naphtha without regard to how the product is used. Although I recognize that absent a compelling reason to the contrary, interpretations of a statute by a state agency charged with administering the statute are considered persuasive, Moody v. Ingram, 361 So. 2d 513 (Ala.1978), I also recognize that this Court has held that "`[i]f a statute is susceptible of two constructions, one of which is workable and fair and the other unworkable and unjust the court will assume that the legislature intended that which is workable and fair.'" Hamilton v. Autauga County, 289 Ala. 419, 429, 268 So. 2d 30 (1972), quoting State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225, 233-34, 66 So. 2d 726, 731 (1953). In addition, "[w]here the language of a taxing statute is reasonably capable of two constructions, the interpretation most favorable to the taxpayer must be adopted." Alabama Farm Bureau Mutual Cas. Ins. Co. v. City of Hartselle, 460 So. 2d 1219, 1223 (Ala.1984).
For the foregoing reasons, I must respectfully dissent.
[1] "Naphtha," as defined in Webster's Ninth New Collegiate Dictionary (1990), is "1: any of various volatile often flammable liquid hydrocarbon mixtures used chiefly as solvents and diluents; 2. PETROLEUM."
[2] Until its amendment in 1995, § 40-17-1, Ala. Code 1975, read as follows: "As used in this article, the term `motor fuel' shall include diesel fuel, tractor fuel, gas oil, distillate, kerosene, jet fuel, or any substitutes or devices therefor when sold, distributed, stored, or withdrawn from storage in this state for use in the operation of any motor vehicle upon the highways of this state."
[3] "(1) GASOLINE. Gasoline, naphtha, and other liquid motor fuels or any device or substitute therefor commonly used in internal combustion engines; provided, that nothing in this article shall be held to apply to those products known commercially as `kerosene oil,' `fuel oil,' or `crude oil' when used for lighting, heating, or industrial purposes." Ala.Code 1975, § 40-17-30(1) (original Vol. 21 and 1985 Repl.Vol. 21); Ala.Code 1940, Tit. 51, § 646; Act No. 772, § 1, 1953 Ala.Acts 1036; Act No. 847, § 1, 1951 Ala.Acts 1477. | June 7, 1996 |
1bea0cd7-b5ca-4ac6-98db-f8703043d318 | Norfolk Southern RR v. Thompson | 679 So. 2d 689 | 1950414 | Alabama | Alabama Supreme Court | 679 So. 2d 689 (1996)
NORFOLK SOUTHERN RAILROAD and E. E. Haynes
v.
Pat THOMPSON, as administratrix of the Estate of Wayne Daniel Thompson, deceased.
1950414.
Supreme Court of Alabama.
June 28, 1996.
*690 David K. Howard of Jester, Howard & Jenkins, Florence, for Appellants.
Garve Ivey, Jr. of King, Ivey & Junkin, Jasper, for Appellee.
COOK, Justice.
Pat Thompson, as administratrix of the estate of her husband Wayne Daniel Thompson, sued Norfolk Southern Railroad and its train engineer E.E. Haynes, alleging that negligence and/or wantonness on their part had caused the wrongful death of Wayne Thompson, who was killed when his automobile was struck by a freight train at the "Baker Lane Crossing" in Colbert County. The trial court directed a verdict for the defendants on the plaintiff's wantonness claim, but submitted her negligence claim to the jury. The jury awarded Thompson $1,000,000 in damages, and the trial judge entered a judgment on that verdict. The defendants appealed, arguing that the evidence required a finding that Mr. Thompson had negligently failed to stop, look, and listen at the railroad crossing; that he had thereby been contributorily negligent; and, therefore, that the trial judge should have granted the defendants' motion for a judgment notwithstanding the verdict. The defendants also argue that the trial court improperly admitted into evidence certain statements made to the plaintiff that the defendants say should have been excluded. For the following reasons, we affirm the judgment.
Mr. Thompson was killed when his vehicle was hit by a freight train at the Baker Lane Crossing in November 1990. Although the engineer testified that he blew the whistle in an effort to alert Mr. Thompson of the oncoming train, other witnesses testified that they did not remember hearing the whistle. These same witnesses said they did remember hearing the crash.
First, the defendants contend that the trial court erred in not granting their motions for a directed verdict, a judgment notwithstanding the verdict or a new trial, because, they say, the evidence offered showed that Mr. Thompson was contributorily negligent, as a matter of law. The defendants contend that the trial judge instructed the jury that someone familiar with the crossing would have a duty to stop, look, and listen. The engineer testified that Thompson did not stop; therefore, the defendants argue that he was contributorily negligent.
The trial judge instructed the jury as follows:
R.T. at 400-08. The engineer testified that Thompson, before attempting to cross the railroad tracks, did not stop, look toward the train, or take any of the precautions required by law to check to see if a train was approaching. The defendants argue that this testimony showed that Thompson was contributorily negligent as a matter of law. We disagree.
In order to prove that Thompson was contributorily negligent, the defendants had the burden of proving (1) that Thompson had failed to exercise reasonable care (i.e., had failed to stop, look, and listen) and (2) that that failure was the proximate cause of his accident. See Slade v. City of Montgomery, 577 So. 2d 887, 892 (Ala.1991) (defining contributory negligence as "negligence on the part of a plaintiff that proximately contributes to the plaintiff's injury"). Evidence indicated that the crossing where Thompson was killed was a hazardous one. The plaintiff introduced photographs showing a sharp curve near the crossing. She also offered the following expert testimony:
R.T. at 361-62. The issue of contributory negligence is generally one to be determined by a jury. See Adams v. Coffee County, 596 So. 2d 892, 895 (Ala.1992). The plaintiff's expert testified that the dynamics of the crossing made it a hazardous one. His testimony created a jury question as to whether Mr. Thompson's failure to stop was the result of negligence on his part, or whether, even if he had tried to stop, he would have been in a nonrecovery zone. Given the testimony at trial and considering that testimony in light of the instructions given to the jury, we conclude that the trial court properly submitted the issue of contributory negligence to the jury.
Next, the defendants contend that the trial court erred in admitting into evidence what they argue was an offer of compromise made to the plaintiff by the railroad's claims agent, Charles Wickwire.[1] Testimony tended to show that after the accident, Wickwire approached the plaintiff's brother and admitted that Norfolk Southern was liable for the accident.[2] Thereafter, Wickwire contacted the plaintiff and, according to her testimony, told her to make a list of funeral expenses and the cost of her husband's car and told her that the railroad "wanted to do what was right." She testified:
R.T. at 138-39. We note our general rule:
Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317, 321 (Ala.1987). The trial judge heard this testimony from the plaintiff outside the hearing of the jury. The plaintiff's brother had already testified that Wickwire had admitted to him that Norfolk Southern was liable for the accident.[3] The trial judge overruled the defendants' objection to the plaintiff's testimony. In Cochran v. Watson, 628 So. 2d 407 (Ala.1993), this Court recognized the general rule regarding offers of compromise, but found that payments made by the defendants to the plaintiff in that case were "inextricable from offered evidence that [the defendants] admitted liability and, therefore, were making payments in light of that admission." 628 So. 2d at 408. Subsequent to Cochran, this Court, in Lowery v. Ward, 662 So. 2d 224 (Ala.1995), in an opinion by Justice Houston, reached a different result, distinguishing the facts in Lowery from the facts in Cochran, as follows:
Lowery v. Ward, 662 So. 2d at 226-27. In holding that the trial court had erred in admitting evidence of certain statements made by the defendants to the plaintiff in Lowery, Justice Houston noted:
662 So. 2d at 227.
We have considered the evidence in this case in light of this Court's holdings in both Cochran and Lowery and we find that the facts of this case are more akin to those in Cochran than to those in Lowery. Because a jury could find that Wickwire's offer to pay funeral expenses was made in light of Wickwire's earlier admission to the plaintiff's brother that the railroad was liable, the trial court did not err in admitting evidence of Wickwire's statements to the plaintiff.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
HOOPER, C.J., and ALMON, SHORES, HOUSTON, INGRAM, and BUTTS, JJ., concur.
MADDOX, J., concurs in the result.
[1] The trial in this case began before January 1, 1996; therefore, the new Alabama Rules of Evidence do not apply.
[2] Evidence of this admission was admitted at trial without objection.
[3] This alleged admission of liability was said to have occurred before the alleged conversation between Wickwire and the plaintiff as to which the plaintiff testified. | June 28, 1996 |
6e1d4a97-d794-48d0-8e9a-86efb33a9810 | City of Tarrant v. Jefferson | 682 So. 2d 29 | 1941573 | Alabama | Alabama Supreme Court | 682 So. 2d 29 (1996)
CITY OF TARRANT, Alabama
v.
Melvin JEFFERSON, et al.
1941573.
Supreme Court of Alabama.
July 12, 1996.
Rehearing Denied August 30, 1996.
John W. Clark, Jr., Wayne Morse and David W. McDowell of Clark & Scott, P.C., Birmingham, for Appellant.
Dennis G. Pantazis and Brian M. Clark of Gordon, Silberman, Wiggins & Childs, P.C., Birmingham, for Appellees.
MADDOX, Justice.
Pursuant to Rule 5, Ala.R.App.P., we permitted the defendant City of Tarrant to appeal from an interlocutory order in which the trial court held that the question of the survivability of Alberta K. Jefferson's cause of action for compensatory damages under 42 U.S.C. § 1983 was governed by federal common law rather than by Alabama's Wrongful Death Act, § 6-5-410, Ala. Code 1975. The plaintiff Melvin Jefferson, Alberta's son, sues individually and as a personal representative for the estate of the decedent. He alleges that Tarrant firefighters, based upon a policy of selectively denying fire protection to minorities, purposefully refused to attempt to rescue and revive Alberta.
Melvin Jefferson claims that city firefighters violated Alberta Jefferson's civil rights, specifically that they intentionally, negligently, wantonly, or carelessly failed to attempt to extricate her from her burning house and thereby caused her wrongful death, a death that would be actionable under § 6-5-410, Ala. Code 1975. The defendant city moved for a judgment on the pleadings, specifically as to those claims seeking compensatory damages under 42 U.S.C. § 1983; the court denied the city's motion, and this Court permitted an appeal from the denial. The defendant city maintains that the question of the survivability of Alberta Jefferson's § 1983 cause of action against the municipality is governed by Alabama law rather than federal common law, and that the trial judge erred in holding otherwise when he denied the city's motion for a judgment on the pleadings.
Is the question of the survivability of Alberta Jefferson's cause of action for compensatory damages under 42 U.S.C. *30 § 1983 governed by federal common law or by reference to the Alabama Wrongful Death Act. This Court addressed this same issue in Carter v. City of Birmingham, 444 So. 2d 373 (Ala.1983), cert. denied, 467 U.S. 1211, 104 S. Ct. 2401, 81 L. Ed. 2d 357 (1984). Also see, Blair v. City of Rainbow City, 542 So. 2d 275 (Ala.1989). This issue arises because no federal statute provides for the survivability of § 1983 claims; moreover, federal law prohibits a § 1983 award of punitive damages against a municipality,[1] and compensatory damages are not available under Alabama's Wrongful Death Act, which allows an award of punitive damages only.[2]
The trial court was aware of this Court's holding in Carter, but held that Weeks v. Benton, 649 F. Supp. 1297 (S.D.Ala.1986), had, in effect, overruled Carter.
We have examined the principles of law stated in Weeks and have also re-examined the principles of law stated in Carter. We conclude that Carter correctly decided this issue. We should also note that the Supreme Court of the United States denied certiorari review of the Carter decision.
The rationale of Weeks appears to be that the application of § 6-5-410 in § 1983 actions is inconsistent with the Constitution and laws of the United States. The pertinent federal statute provides: "In all cases where [the laws of the United States] are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause." 42 U.S.C. § 1988.
In Carter this Court, when confronted with this same issue, concluded that § 6-5-410 was not inconsistent with the Constitution and laws of the United States, citing Robertson v. Wegmann, 436 U.S. 584, 98 S. Ct. 1991, 56 L. Ed. 2d 554 (1978), which held that a § 1983 action would abate in accordance with Louisiana's survivorship statute. Carter is based in part upon Brown v. Morgan County, 518 F. Supp. 661 (N.D.Ala.1981), which held that compensatory damages are not recoverable in § 1983 actions based on Alabama's Wrongful Death Act. The Brown court distinguished the Brown case from Robertson by noting that the Louisiana abatement statute "[w]as obviously more restrictive than the Alabama wrongful death act" and that, "like the Louisiana survival statute under consideration in Robertson, the Alabama death act should not be disregarded and cannot be considered `inconsistent' with federal law merely because the statute provides for recovery of only punitive damages." Brown, 518 F. Supp. at 663-65, quoted in Carter, 444 So. 2d at 377. Robertson states simply that state law applies in § 1983 actions seeking recovery for wrongful death unless, upon application of § 1988, it is found to unduly restrict the federal claim, Carter, 444 So. 2d at 377, and it states that "[a] state statute cannot be considered `inconsistent' [or unduly restrictive] with federal law merely because the statute causes the plaintiff to lose the litigation." 436 U.S. at 593, 98 S. Ct. at 1996.
Furthermore, as noted earlier, the United States Supreme Court has held that a plaintiff cannot recover punitive damages against a municipality under § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981). Therefore, as Carter states: "[S]tate law affords a remedy beyond that now permitted under federal lawpunitive damages. Thus, the application of state law ... does not, in substance, abrogate plaintiff's remedy against the city for violations of § 1983, but rather expands the recovery." Carter, 444 So. 2d at 379 (emphasis omitted).
444 So. 2d at 380 (emphasis omitted).
This Court held in Carter that § 6-5-410, Ala. Code 1975, is not inconsistent with the Constitution and laws of the United States. We reaffirmed that holding in Blair v. City of Rainbow City, 542 So. 2d at 275 (Ala.1989). We have re-examined the principles of law stated in Carter and Blair, and we conclude that the holding in those cases is still sound. The order of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and SHORES, and KENNEDY, JJ., concur.
BUTTS, J., concurs in the result.
HOUSTON and COOK, JJ., dissent.
HOUSTON, Justice (dissenting).
I am faced with a dilemma. Should I adhere to the doctrine of stare decisis, knowing that the precedent upon which I rely (Tatum v. Schering Corp., 523 So. 2d 1042, 1049-63 (Ala.1988)) was wrongly decided? To follow it would be to deny the plaintiff Melvin Jefferson a remedy. Or should I follow the law as I believe it to be, although what I believe the law to be is contrary to the opinion of the majority? To follow what I believe the law to be would afford Melvin Jefferson, as personal representative of the estate of Alberta K. Jefferson, deceased, a remedy through his action under 42 U.S.C. § 1983. If a constitutional doctrine was involved, I would follow Justice Scalia's dissent in BMW of North America, Inc. v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), as I did in Ex parte Knotts, [Ms. 1950239, July 12, 1996], ___ So.2d ___ (Ala. 1996) (Houston, J., concurring in the result). In this case, no constitutional issue is involved; however, I am convinced that this Court has erroneously interpreted Ala. Code 1975, § 6-5-410 (to hold that only punitive damages can be recovered in wrongful death cases), and I cannot expand this erroneous interpretation of § 6-5-410 to § 1983 actions and deprive Melvin Jefferson (or other plaintiffs similarly situated) of a right to a remedy, which after much research and analysis, I wholeheartedly believe that he and those similarly situated have. Tatum v. Schering Corp., supra (Houston, J., dissenting). Therefore, I respectfully dissent.
COOK, Justice (dissenting).
I respectfully dissent. This Court should affirm the trial court's holding that application of the state's wrongful death statute in this fact situation would be inconsistent with the policy underlying the 42 U.S.C. § 1983 cause of action.
The majority's holding that Alabama's wrongful death statute determines whether Alberta Jefferson's § 1983 federal cause of action survives is based on this Court's opinion in Carter v. City of Birmingham, 444 So. 2d 373 (Ala.1983), and Blair v. City of Rainbow City, 542 So. 2d 275 (Ala.1989). I agree with the reasoning of Justice Jones and Justice Adams, who wrote specially in Carter and Blair, respectively, and who disagreed with the idea that Alabama municipalities are exempt from a wrongful death action under § 1983 because the state recognizes an analogous cause of action.
This Court in Carter, based on an analysis of Robertson v. Wegmann, 436 U.S. 584, 98 S. Ct. 1991, 56 L. Ed. 2d 554 (1978) (holding that a § 1983 action would abate in accordance with Louisiana's survivorship statute), and Brown v. Morgan County, 518 F. Supp. 661 (N.D.Ala.1981), determined that a close parallel exists between the interests being protected in actions brought under the Alabama Wrongful Death Statute and interests involved in cases where death results from violations that would give rise to liability under § 1983. Therefore, Carter reasoned, the purpose of § 1983 was not defeated, because under the Alabama Wrongful Death Act an appropriate remedy is provided in death cases.
The view more in accord with the policy of § 1983 is expressed in the more recent opinion *32 of Weeks v. Benton, 649 F. Supp. 1297 (S.D.Ala.1986). In Weeks, the administratrix of a deceased county jail inmate sued Baldwin County commissioners and others under § 1983, alleging violations of the inmate's rights. Judge Hand recognized in Weeks that (1) the Robertson holding was a narrow one, limited to situations in which the application of the state survivorship law does not adversely affect the § 1983 policies of compensation and deterrence, and (2) that the Robertson analysis could not defend the strict application of the state's wrongful death statute in cases where alleged wrongful acts of a municipality or county resulted in the decedent's death. Such an application would allow those entities to operate with immunity from § 1983 actions based on deprivations of constitutional rights, so long as the victims of those deprivations die. Weeks, 649 F. Supp. at 1305-06. Providing what is in essence partial immunity to municipalities in death cases is inconsistent with the § 1983 policy of deterrence. Addressing this issue, Judge Hand wrote:
649 F. Supp. at 1305-06.
In Robertson, the decedent had no immediate survivors, so the executor was suing only on the estate's behalf. Alberta Jefferson has several survivors including the plaintiff Melvin Jefferson.
I agree with Justices Jones and Adams that "[w]e should either fashion a remedy allowing recovery of compensatory damages, or we should resort to the federal common law of survival, which allows compensatory damages as the appropriate relief." Carter, 444 So. 2d at 380 (Jones, J., concurring in part and dissenting in part); Blair, 542 So. 2d at 278 (Adams, J., concurring specially and quoting Justice Jones's statement). Moreover, because I also agree with the analysis in Weeks, that Alabama's wrongful death statute should not be held to foreclose the recovery of compensatory damages under § 1983, I respectfully dissent.
[1] City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981).
[2] See, e.g., Atkins v. Lee, 603 So. 2d 937 (Ala. 1992). | July 12, 1996 |
03f5824a-8928-481e-aa6c-415349a50af8 | Ex Parte Masonite Corp. | 681 So. 2d 1068 | 1950962, 1950963, 1951093 | Alabama | Alabama Supreme Court | 681 So. 2d 1068 (1996)
Ex parte MASONITE CORPORATION and International Paper Company.
(Re Judy NAEF, et al. v. MASONITE CORPORATION, et al.).
Ex parte MASONITE CORPORATION.
(Re Judy NAEF, et al. v. MASONITE CORPORATION, et al.).
1950962, 1951093 and 1950963.
Supreme Court of Alabama.
June 28, 1996.
*1069 Warren B. Lightfoot, Mac M. Moorer and Lee M. Hollis of Lightfoot, Franklin & White, L.L.C., Birmingham, and Sandy Robinson of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, for all petitioners.
Steven J. Harper and Richard C. Godfrey of Kirkland & Ellis, Chicago, IL, for Masonite Corporation.
Robert T. Dorman of McRight, Jackson, Dorman, Myrick & Moore, Mobile, and Elizabeth J. Cabraser, Michael F. Ram, Christine J. Anderson and Jonathan D. Selbin of Lieff, Cabraser, Heimann & Bernstein, San Francisco, CA, for Respondents.
ALMON, Justice.
These petitions, all seeking extraordinary review of preliminary matters in a class action, are due to be denied. The action seeks damages based on alleged defects in exterior siding manufactured by the Masonite Corporation. Masonite's[1] petitions for the writ of mandamus and for permission to appeal seek to have the class certification set aside, the circuit judge recused, and the plaintiffs' attorneys disqualified, all on the basis of contacts between the circuit judge and the plaintiffs' attorneys that Masonite asserts were improper.
The allegations of improper ex parte contacts are not substantiated by the materials before us. At the hearing on class certification, the circuit judge, Judge Robert G. Kendall, told the parties that, when he decided whether to grant class certification, he would notify the prevailing party and ask that party to draft a proposed order. Masonite did not object to this proposed procedure. After the judge decided to certify the class, the communications between the judge or his staff and the attorneys or their employees were the barest minimum necessary to notify the plaintiffs that the court had decided to certify the class and to effectuate the drafting of the certification order.[2]
The plaintiffs filed their complaint in December 1994 and amended it in January 1995. Discovery and briefing on whether to certify a class proceeded from March through October 1995. A full hearing was held on class certification on October 16, 1995, at which Masonite presented expert *1070 testimony and the attorneys for both sides argued at length for and against certification of a nationwide plaintiff class of owners of residences with Masonite siding. At the conclusion of the hearing, Judge Kendall stated:
On November 6, Judge Kendall notified Richard T. Dorman, one of the plaintiffs' attorneys, that he had decided in favor of class certification. One or two days later, Mr. Dorman had his secretary call the judge's office to ask whether to certify subclasses, and the answer came back, "No." A draft of the order was sent with a short cover letter, and the judge made changes and sent the order back. Someone in Mr. Dorman's office telephoned the judge's office and asked whether to send a copy of the order to the defendants and was told not to. The finished order was then delivered to Judge Kendall. Out of these events, Masonite counts 11 "ex parte "communications.
On November 15, 1995, Judge Kendall signed the order certifying the class. Later that day, and apparently without notice or knowledge that Judge Kendall had certified the class, Masonite filed a petition for removal to a federal court. On the plaintiffs' motion, the federal court remanded the cause in late January or early February 1996. On February 7, Masonite filed a motion to vacate the certification of the plaintiff class, asserting that the communications between the judge and Mr. Dorman to facilitate the drafting of the order had constituted ex parte communications, which are prohibited by Rule 3.5(b) of the Alabama Rules of Professional Conduct and Canon 3(A)(4) of the Alabama Canons of Judicial Ethics.
We note that footnote 2 of Masonite's February 7 motion to vacate states:
(Emphasis added.) Canon 3(A)(4) of the Alabama Canons does not "specifically" apply to such proposed findings or orders. The American Bar Association adopted a new Model Code in 1990. Canon 3(A)(4) of Alabama's Canons of Judicial Ethics is substantially the same as Canon 3(A)(4) of the 1972 ABA Code of Judicial Conduct. In both our Canons and the ABA's 1972 Code, Canon 3(A)(4) and its commentary are silent as to requests for, or submissions of, proposed findings or orders.
The 1990 version of the ABA's model canon on ex parte communications is Canon 3(B)(7). The commentary to that rule includes this statement: "A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions."
As we view these petitions, Masonite's challenge to the certification order reduces to a complaint that it was not given a copy of the order before Judge Kendall signed it. This oversight was redressed by the fact that, in response to Masonite's motion to vacate, Judge Kendall scheduled a hearing on the matter, which was held on February 14. The hearing opened with these remarks:
Mr. Lightfoot continued in the same vein, arguing generally and in the abstract that the practice of allowing prevailing counsel to draft proposed opinions and orders raises an appearance of impropriety. He never described any portion of the order that Masonite would have objected to if it had been given a copy of the order before Judge Kendall signed it. Mr. Dorman then took the stand and described the process by which the order was drafted; one of his partners then gave further testimony. At the conclusion of this testimony, Mr. Lightfoot said he would like a week to consider whether to file a motion asking Judge Kendall to recuse and to disqualify the plaintiffs' lawyers. The attorneys then argued further issues not here pertinent.
On February 23, Masonite filed a motion asking Judge Kendall to recuse and a motion to disqualify the plaintiffs' counsel, supported, among other things, by affidavits from Prof. Steven Lubet of Northwestern University School of Law and Prof. William G. Ross of Cumberland School of Law. Masonite later filed an affidavit of Prof. Geoffrey C. Hazard, Jr., of the University of Pennsylvania and Yale University, and other materials in support of its motion.
In response, the plaintiffs submitted, among other things, the affidavits of two respected members of the Bar of this state, former Chief Justice C.C. Torbert and the late Circuit Judge Joseph Phelps, and the declaration of another respected Bar member, former Circuit Judge Joseph A. Colquitt. They expressed unequivocal opinions that the drafting of the order certifying this action as a class action complied with the Canons of Judicial Ethics, the Rules of Professional Conduct, and the usual and customary practice in this state. Chief Justice Torbert's affidavit includes the following:
Judge Phelps stated in his affidavit, in support of his "strong opinion that there was no ethical breach by the lawyers or Judge Kendall in this case [and that] [c]ertainly, there is no basis for recusal or disqualification of Judge Kendall or the lawyers":
Judge Colquitt's declaration includes the following specific points that refute Masonite's arguments for setting aside the class certification because of the alleged ex parte communications:
Except in one respect, Judge Kendall followed the procedure he announced at the conclusion of the hearing on class certification. That one deviation from the announced procedure was the judge's failure to give the defendants' attorneys a copy of the order before he signed it.[3] When the judge was reminded that he had said he would give both sides a copy of the order before signing it, he called a further hearing and invited the parties to object to any provisions of the order. The defendants objected to the certification of the class, but did not suggest any revision to the order. Any harm that may have occurred from the judge's failing to follow the earlier-announced plan of allowing review of a proposed order after it had been drafted by the prevailing party was cured by the hearing at which the defendants were given the opportunity to object to any portions of the order they deemed to be incorrect or inappropriate.
The affidavits by Chief Justice Torbert and Judge Phelps and the declaration by Judge Colquitt show that these respected members of our Bar reviewed the pertinent materials and concluded that nothing improper occurred. We agree with these former circuit judges and this former Chief Justice of this Court that the circuit judge and the plaintiffs' attorneys have engaged in no unethical conduct and no conduct creating an appearance of impropriety.
This conclusion is supported by the reported appellate cases. In Stollenwerck v. Talladega County Board of Education, 420 So. 2d 21 (Ala.1982), this Court held that the circuit court's adoption of an order containing what the appellant called "extensive findings of fact," prepared by the defendant's attorney, did not violate Rule 52(a), Ala. R. Civ. P., which pertains to findings of fact by the trial court:
420 So. 2d at 23-24 (emphasis original; footnote omitted). In Medical Arts Clinic, P.C. v. Henry, 484 So. 2d 385 (Ala.1986), this Court, while disapproving of an ex parte communication, held that it did not constitute reversible error.
More recently, the Court of Civil Appeals has found no error in a "trial court's request for the parties to `draft an appropriate decree' ":
Boothe v. Jim Walter Resources, Inc., 660 So. 2d 604, 607 (Ala.Civ.App.1995) (emphasis original).
The Supreme Court of the United States has disapproved "the Fourth Circuit's suggestion that `close scrutiny of the record in this case [was] justified by the manner in which the opinion was prepared,' ... that is, by the District Court's adoption of petitioner's proposed findings of fact and conclusions of law.... [O]ur previous discussions of the subject suggest that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 571-72, 105 S. Ct. 1504, 1510-11, 84 L. Ed. 2d 518 (1985) (citation omitted).
In two recent cases, the United States Court of Appeals for the Eleventh Circuit has found no reversible error where proposed orders were drafted by attorneys in whose favor the judges had ruled. In re Colony Square Co., 819 F.2d 272 (11th Cir. 1987), cert. denied, 485 U.S. 977, 108 S. Ct. 1271, 99 L. Ed. 2d 482 (1988); In re Dixie Broadcasting, Inc., 871 F.2d 1023 (11th Cir.), cert. denied, 493 U.S. 853, 110 S. Ct. 154, 107 L. Ed. 2d 112 (1989). See also Keystone Plastics, Inc. v. C & P Plastics, Inc., 506 F.2d 960 (5th Cir.1975). In Colony Square, the bankruptcy judge had communicated with the creditor's attorney on several occasions requesting orders, without the debtor's knowledge. The Court of Appeals found no error, *1075 based principally on two facts: the judge had "already reached a firm decision before asking Alston & Bird to draft the proposed orders," 819 F.2d at 276, and "[s]econd, Colony has had ample opportunity to present its arguments," 819 F.2d at 277. Both of these facts are present hereJudge Kendall had reached a firm decision before telephoning Mr. Dorman (indeed, he ruled against the plaintiffs on their requests for certification of a non-opt-out Rule 23(b)(1) or (b)(2) class and for certification of subclasses), and he gave Masonite a full opportunity to argue its assertion of prejudice when it called to his attention that he had forgotten to send it a copy of the order before entering it.
With all due respect to the law professors who have executed affidavits in support of Masonite's motions, we observe that they have not taken into account several aspects of the case. First and foremost, they fail to consider the fact that Judge Kendall had held an extensive class certification hearing and had received briefs from both sides before he decided to certify the class. They also give too little weight to the February 14 hearing, held after Masonite had made its motion to vacate, at which Masonite was able to point to no provisions in the order that might have been overwritten, exaggerated, or otherwise distorted or that were erroneous by virtue of the drafting by the plaintiffs' attorneys without notice to the defendants. They also fail to take into account the fact that a certification order is inherently interlocutory, conditional, and subject to revision or complete decertification if, as the case develops, countervailing considerations arise. We see no sign that they have taken into account the rigorous schedule of a trial court's docket. Seven of the Justices of this Court are former circuit judges and are well aware of the necessity of assistance such as was provided by the attorneys in this case. Of the résumés of these three law professors, only Prof. Ross's shows any significant experience in the private practice of law.
Frankly, we find it somewhat unusual for officers of the court to seek recusal under these circumstances. When given the opportunity at the February 14 hearing to present their objections to the court's order, defense counsel did not suggest any revision of the order or cite any change they would have suggested if the order had been sent to them before it was executed, other than to change the result of certifying the class.
For the foregoing reasons, we hold that there is no basis for further review of the petitioner's allegations of improper ex parte communications.
To the extent that these petitions challenge the notice procedure as not complying with Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985), the petitions do not show any clear error and do not present a question appropriate for review under Rule 5, Ala. R.App. P. Shutts and Rule 23(c)(2), Ala. R. Civ. P., require only "the best notice practicable under the circumstances." Notice by publication has been approved in national class actions where the identities of the class members cannot be ascertained. In re Domestic Air Transportation Antitrust Litigation, 141 F.R.D. 534, 548 (N.D.Ga.1992); Jordan v. Global Natural Resources, Inc., 104 F.R.D. 447, 448 (S.D.Ohio 1984). The dissent addresses the question whether Shutts would be violated by an application of Alabama law to all of the plaintiffs' claims, but Judge Kendall has not even ruled on the choice of law question yet.
Similarly, there is no merit to the argument that Judge Kendall's order is due to be set aside on the basis that he has made a preliminary decision to hold an initial trial on the single issue of whether the siding is defective. Initial trials on a single issue, such as whether a particular product is defective, have been approved in complex product liability class actions. Jenkins v. Raymark Indus., Inc., 109 F.R.D. 269 (E.D.Tex. 1985), aff'd, 782 F.2d 468, reh'g denied, 785 F.2d 1034 (5th Cir.1986); Central Wesleyan College v. W.R. Grace & Co., 6 F.3d 177 (4th Cir.1993); In re School Asbestos Litigation, 789 F.2d 996 (3d Cir.1986), cert. denied sub nom. Celotex Corp. v. School Dist. of Lancaster, 479 U.S. 852, 107 S. Ct. 182, 93 L. Ed. 2d 117 (1986); Arthur Young & Co. v. United States District Court, 549 F.2d 686 (9th Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. *1076 109, 54 L. Ed. 2d 88 (1977); In re Copley Pharmaceutical, Inc., `Albuterol' Products Liability Litigation, 161 F.R.D. 456 (D.Wyo. 1995). Furthermore, Judge Kendall's order is preliminary, and appellate courts do not review preliminary orders in class actions absent compelling reasons to do so. First Alabama Bank of Montgomery, N.A. v. Martin, 381 So. 2d 32 (Ala.1980), appeal after remand, 425 So. 2d 415 (Ala.1982), cert. denied, 461 U.S. 938, 103 S. Ct. 2109, 77 L. Ed. 2d 313 (1983); Ex parte Central Bank of the South, 675 So. 2d 403 (Ala.1996).
For the foregoing reasons, the petition for permission to appeal is denied, and the petitions for the writ of mandamus are also denied.
1950962WRIT DENIED.
1950963PETITION FOR PERMISSION TO APPEAL DENIED.
1951093WRIT DENIED.
SHORES, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., concurs in part and dissents in part.
MADDOX and HOUSTON, JJ., concur in the result in part and dissent in part, with separate writings.
HOOPER, Chief Justice (concurring in part and dissenting in part).
I agree with the majority that there is insufficient evidence of bias on the trial judge's part to justify recusal. However, I must dissent from the denial of the petition for the writ of mandamus sought on the basis of improper class certification under Rule 23, Ala. R. Civ. P. This case involves a nationwide class of perhaps three million members and the laws of many states other than Alabama. "Alabama does not have the power... to punish [a defendant] for conduct that was lawful where it occurred and that had no impact on Alabama or its residents. Nor may Alabama impose sanctions on [a defendant] in order to deter conduct that is lawful in other jurisdictions." BMW of North America, Inc. v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996); see also Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.1996). I would at least order an answer and briefs to determine if questions of law or fact are common to the class. Therefore, I concur as to the recusal issue, but I must respectfully dissent from the denial of the petition for permission to appeal and the denial of the petitions for the writ of mandamus.
MADDOX, Justice (concurring in the result in part and dissenting in part).
The petitioners, Masonite Corporation and International Paper Company, raise two issues in their mandamus petition and their motion to stay the trial proceedings: 1) whether the trial court erred in certifying a national class action pursuant to Rule 23(a) and (b)(3), Ala. R. Civ. P., and 2) whether the trial judge erred in refusing to recuse, in light of the petitioners' allegations that the trial judge and counsel for the plaintiffs engaged in improper ex parte communications in drafting the class certification order.
Although I concur in the result of the majority's opinion as to the recusal issue, without accepting the language contained therein addressing this issue, I must respectfully dissent from the majority's denial of the petition for the writ of mandamus and the denial of the motion to stay, because I believe the petitioners have put forth sufficient evidence to warrant this Court's ordering an answer and briefs.
The respondents filed a class action against Masonite Corporation and others, alleging that hardwood siding sold by the defendants was inherently defective and that the defendants had systematically misled their customers about the product. The proposed class includes all persons affected by any of this siding sold after 1980. The defendants note that since 1980 over 5 billion board feet of this siding has been installed in over 3 million structures in all 51 jurisdictions included in the class action pleadings.
The trial judge, pursuant to the plaintiffs' motion, certified the action against these defendants as a national class action; as a result, the petitioners say, there is a putative *1077 class of over 3 million plaintiffs. I am attaching the class certification order of the trial judge as Appendix A to this special opinion.
I agree with the petitioners' assertion that they have shown that the trial judge erred in certifying this action as a national class action. They say the trial judge erred because: 1) he impermissibly failed to address and resolve the choice of law issues, in violation of both Rule 23 and the United States Constitution; 2) he authorized a national class action where there are no predominant common questions of law or fact; and 3) he constructed a class that is neither superior nor manageable.
Rule 23(a), Ala. R. Civ. P.,[4] addresses the initial requirements that must be present in order for a trial judge to certify a class action:
(Emphasis added.) After a plaintiff has shown that the prerequisites of Rule 23(a) have been met, the trial court then must look to Rule 23(b), in order to determine what type of class action will be maintained; only after the plaintiffs have satisfied the pertinent portion of Rule 23(b) may the trial judge certify the action as a class action. The trial judge in this case found that the plaintiffs' claims mainly concerned monetary relief, so he certified the class pursuant to Rule 23(b)(3), which reads:
(Emphasis added.)
In arguing that the requirements of Rule 23 have not been met in this case, the petitioners raise two important points: 1) that the application of Alabama law to all plaintiffs in this case would violate their constitutional rights to due process; and 2) that even if the trial judge allows the jury to consider liability by applying the separate tort laws of the 51 different jurisdictions, litigation of this class action would not only violate the law as expressed in Rule 23, but would also violate their constitutional rights to due process. I will discuss each of these arguments separately.
The petitioners first argue that this national class certification violates both Rule 23 and the United States Constitution because, they argue, the certification order is in direct conflict with the United States Supreme Court's decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985). The petitioners argue that because fewer than 1% of the potential plaintiffs live in Alabama, application of Alabama tort law to the entire class violates their constitutional right to due process as outlined in Shutts, *1078 because the potential plaintiffs reside in all 51 jurisdictions and these jurisdictions do not share common tort laws; thus, they say allowing a class action means Masonite could be held liable under Alabama law to all plaintiffs, even though particular plaintiffs might reside in a jurisdiction whose law would not allow a recovery.
I believe the petitioners have sufficiently shown that this certification order may violate the mandate of Shutts. I realize, of course, that the majority has written extensively, citing cases, and that it distinguishes Shutts, but it does so without the benefit of an answer and briefs; but I would not deny the writ before I heard from both sides, especially in view of the due process concerns presented and in view of the fact that recent two federal cases, which have been decided since this petition was filed, have addressed the same issues raised by the petitioners. Upon review of these cases and the class certification order, I believe that the issues raised by the petitioners relating to the certification of a national class action clearly show that this lawsuit may implicate many federal constitutional rights.[5]
In Shutts, where the facts were remarkably similar to the facts of this present case,[6] the United States Supreme Court held that a party's due process rights are violated where a state court applies its own law in a class action proceeding and the state does not have "significant contacts or a significant aggregate of contacts to the claims asserted by each member of plaintiff class." (Emphasis added). Shutts, 472 U.S. at 821, 105 S. Ct. at 2979. Important in the Shutts decision, in my opinion, was the fact that both Texas and Oklahoma had different laws concerning the computation of mineral royalties. Id. at 814-22, 105 S. Ct. at 2975-80. The United States Supreme Court held in Shutts that application of Kansas law in that national class action violated the defendant's federal constitutional right to due process; the Court explicitly stated that the issue presented in Shutts was one of federal constitutional law, which would pre-empt any state action that would violate that right. Id. at 821-22, 105 S. Ct. at 2979-80.
I believe the majority mistakenly interprets the holding of Shutts by stating that "Shutts ... require[s] only `the best notice practicable under the circumstances.'" 681 So. 2d at 1075. I read the holding of Shutts differently. Chief Justice Rehnquist, in announcing the decision of the Court in Shutts, stated the constitutional requirements as follows:
Id. at 821-22, 105 S. Ct. at 2979-80. (Emphasis added; citations omitted.) It is this holding in Shutts that convinces me that the petitioners have sufficiently shown that they are entitled to the extraordinary relief they seek.[7] Because the petitioners have shown that over 99% of the potential plaintiffs live outside the State of Alabama, and because the record presently fails to show that Alabama has sufficient contacts with each of the potential plaintiffs to apply its law to all claims asserted by the class, I would like to have the trial judge's response to the petitioners' argument before he proceeds further with the class action. From the facts, as I view them now, it would seem apparent that the certification order violates the rule of Shutts. If Masonite and the other defendants are held liable to all 3 million plaintiffs under Alabama's tort laws, there could be no question that their constitutional rights have been violated.
This class certification order seems to violate the spirit and purpose of Rule 23. In order to ensure that the petitioners' constitutional rights to due process are not violated, the trial court would be required to apply the tort laws of all other 50 jurisdictions in determining Masonite's liability in this national class action. Although I am aware that the trial judge has not made his ruling concerning the law to be applied, it is apparent from the record here that Shutts forbids the application of Alabama law to the entire class; therefore, the trial judge's only option would be to apply the different tort laws from the other 50 jurisdictionsbut to do so would violate the spirit and purpose of Rule 23. Rule 23(a)(2) states that a class action may be maintained only where "there are questions of law or fact common to the class." Further, Rule 23(b)(3) requires a class action be "superior to other available methods for the fair and efficient adjudication of the controversy."
There is recent support for my position that the class certification order here could violate the petitioners' due process rights. While this petition was pending, the United States Court of Appeals for the Fifth Circuit, in Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.1996), decertified a class action brought in a federal court, on the basis that the provisions of Rule 23(a) and Rule 23(b)(3) had not been satisfied. In Castano, the Fifth Circuit held that the trial judge had abused his discretion in certifying a national products liability class action against seven tobacco companies, in a factual situation remarkably similar to the factual situation on which this present action is based. Important to the court's determination that the class action could not be maintained was the fact that before certifying the class the trial judge had not considered the variations in the tort laws of the 50 different jurisdictions. The court also held that the trial judge erred in certifying the class in regard to numerous fraud claims; the court said the reliance element of a fraud claim eliminates "common issues of fact or law." The court held that the trial judge's determination of manageability was likewise erroneous.
Although I was aware of the Castano decision as soon as it was released, the petitioners have filed a supplemental brief in which they correctly point out that the underlying facts of this present class suit are remarkably similar to the facts presented in Castano. For example, in this case, the representative plaintiffs have asserted the following claims against Masonite: fraudulent suppression, fraudulent misrepresentation, breach of express and implied warranties, products liability, and negligence. In Castano the plaintiffs asserted claims for: "fraud and deceit, *1080 negligent misrepresentation, ... negligence and negligent infliction of emotional distress, violation of state consumer protection statutes, breach of express warranty, breach of implied warranty, [and] strict product liability." 84 F.3d at 737. In both of these case, the trial judge certified a national class action, pursuant to Rule 23, without conducting a jurisdictional survey concerning the variations in differing state tort laws.
The Fifth Circuit's opinion in Castano is persuasive not only because of the similarities between the two cases, but because this Court has held, in Bracy v. Sippial Electric Co. Inc., 379 So. 2d 582 (Ala.1980), that federal cases interpreting the Federal Rules of Procedure are authority in the construction of the Alabama Rules of Civil Procedure; therefore, Castano is binding authority.
I realize, of course, that a trial judge has broad discretion in certifying a class action and that this Court will not by writ of mandamus act to undo a class certification except upon a clear showing that the trial judge abused his discretion in certifying the class. I believe that in this casea case that has many constitutional implicationsthe learned trial judge has failed to follow federal precedents, and I believe the writ of mandamus would be appropriate to remedy the judge's abuse of discretion.
The reasons for my conclusion are: First, the trial judge failed to rule on what law would be applied in this action before he certified the class. Second, the trial judge erred in determining that the class is manageable. Third, the trial judge erred in ruling that the class certification satisfies the Rule 23(b)(3) requirement of "predominance" and "superiority." I will discuss these issues in the order in which that I have just stated them.
Although the trial in this class action is scheduled to begin within 90 days, and could begin as early as August 19, 1996, the trial judge has not ruled on which law will be applied in this action. The majority erroneously believes that the failure of the trial judge to rule on this important issue does not affect the determination of whether certification of this national class action was proper.[8] However, this ruling is crucial to determining the validity of the class certification in the first instance. As I have previously discussed, under Shutts Alabama law cannot be applied to all the claims asserted by the national class without violating the petitioners' federal constitutional right to due process. Consequently, now that the trial judge has made the crucial initial decision on certification of a national class, it follows that the only option available to the trial judge is to apply the differing tort laws from all 51 jurisdictions. The Fifth Circuit held in Castano that the failure of the trial judge to make a ruling on the choice of law issue required that the class be decertified; I would make a similar holding in this case. Due process at least requires that a class defendant know the scope of what that defendant must defend against.
In his class certification order, the trial judge stated that "if the Court concludes that the law of a single state cannot, consistent with Alabama's choice of law rules, be applied to one or more of plaintiffs' claims, the Court is not persuaded that the variations in applicable state laws are so significant as to create predominant legal issues." See, Appendix A, 681 So. 2d at 1090. There are two significant points to be raised from this ruling: 1) it is apparent that the trial judge, in making this ruling, has failed to rule on which law will be applied in this national class action, and 2) the trial judge has stated that the variation in different tort laws is not "so significant as to create predominant individual issues." Although it is not apparent from the record, it appears that the trial judge has not yet undertaken a jurisdictional survey concerning the differing laws of our sister jurisdictions. In my opinion, serious consideration of either of these points by the majority would require decertification, because *1081 the law seems clear that "[i]n a multi-state class action, variations in state law may swamp any common issues and defeat predominance." Castano, 84 F.3d at 741. See, Georgine v. Amchem Products, Inc., 83 F.3d 610 (3d Cir.1996). As I read the federal decisions addressing national class actions, a trial court must consider variations in state law before certifying a class action, where the law of one jurisdiction cannot be constitutionally applied to all claims. See, Georgine; Castano; In re American Medical Systems, Inc., 75 F.3d 1069 (6th Cir.1996); In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 184, 133 L. Ed. 2d 122 (1995), Grady v. Rhone-Poulenc Rorer Inc., ___ U.S. ___, 116 S. Ct. 184, 133 L. Ed. 2d 122 (1995); Walsh v. Ford Motor Co., 807 F.2d 1000 (D.C.Cir. 1986), cert. denied, 482 U.S. 915, 107 S. Ct. 3188, 96 L. Ed. 2d 677 (1987); Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309 (5th Cir.1978). In fact, in Castano the Court of Appeals for the Fifth Circuit concisely articulated the requirement that a trial judge make a ruling regarding the law to be applied before certifying a class action pursuant to Rule 23(b)(3).
84 F.3d at 741.
The plaintiffs, and apparently the majority of this Court, believe that the fact that the trial judge has failed to rule onmuch less conduct a jurisdictional survey regardingthe applicable law is a minor point, having no bearing on the validity of the class certification order and is a matter that can be decided later. That apparently is not the law, as interpreted by the federal cases I cite above.
As Judge Harry T. Edwards and then Judge Ruth Bader Ginsberg wrote for the District of Columbia Circuit Court of Appeals:
Walsh v. Ford Motor Co., 807 F.2d at 1016. As Judge Edwards and Judge Ginsberg wrote, "the `which law' matter" is not purely "academic." The trial judge's determinationor lack thereofof the "which law" issue is crucial, and in this case the trial judge's failure to make that determination before certifying this as a national class action was error. The remedy would be for this Court to at least require an answer from the trial judge and order that the parties brief the more recent federal decisions touching the issue. In holding that the national class action must be decertified, the Court in Castano stated:
84 F.3d at 743. Similarly, the trial judge in this case has not considered the variations in the tort laws of our sister jurisdictions. Based on the fact that Shutts prohibits the application of Alabama tort law in this action and the fact that the trial judge has not even conducted a jurisdictional survey on the differing laws, it appears to me that the petitioners have made at least a prima facie showing that this national class action was not properly certified.
There is another reason why we should require an answer and briefs. The trial court failed to consider how the variation in different tort laws would affect the Rule 23 "manageability" requirement. In the certification order the trial judge stated:
See Appendix A, 681 So. 2d at 1090. I believe that the manageability of the action is intricately tied to the "which law" question. I cannot understand how the trial judge concluded that the class action would be manageable, absent a sufficient determination of what laws will be applied in this action, because the analysis and application of different tort laws to the petitioners on claims asserted by the various class plaintiffs, 99% of whom reside in jurisdictions other than Alabama, have great bearing on whether this case will be manageable. The Castano court seems to agree with this analysis, for it held that "[t]he [trial] court also failed to perform its duty to determine whether the class action would be manageable in light of state law variations." Castano, 84 F.3d at 743. Basically, the Castano court held that a trial court cannot rule that a national class action is manageable, without determining the applicable laws and considering how the different laws will affect manageability. "In summary, whether the specter of millions of cases outweighs any manageability problems in this class is uncertain when the scope of any manageability problems is unknown." Castano, 84 F.3d at 744. (Emphasis added.)
Although the trial judge has ruled that the class action is manageable, this ruling seems unpersuasive when viewed in light of the fact that the trial judge has not considered state law variations. The trial judge's assurance that the class is manageable must be considered in light of the fact that so many of the operative facts upon which this determination was made are disputed; when it is so considered, it is obvious that the judge made the factual determination of manageability of this national class action without sufficiently considering the choice of law issue and its effect on the determination.
There is another reason why I believe that this Court should require an answer and briefs before allowing this class action to proceed. It appears to me that the trial court erred in determining that the plaintiffs satisfied the predominance requirement of Rule 23(b)(3). In ruling that the predominance requirement had been satisfied, the trial court wrote:
(Emphasis added; citations omitted.) In making this determination, the trial court, and the majority of this Court in its opinion, relied on Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974), and a Fifth Circuit case, Jenkins v. Raymark Industries, Inc., 782 F.2d 468 (5th Cir.1986). However, in Castano, the Fifth Circuit discussed both of the cases relied on by the majority, and specifically stated that neither Eisen or Jenkins can be used in determining whether the predominance requirement has been satisfied in a national class action alleging fraudulent conduct, where laws of different jurisdictions would be *1083 applied.[9]Castano states in clear terms that where a class action is based on fraud, which normally requires a plaintiff to prove reliance, a national class action cannot be certified unless all plaintiffs in the action can show that they relied on the same conduct and that the conduct induced them to purchase the product:
Castano, 84 F.3d at 745. (Emphasis added; footnotes omitted.) It appears to me that the trial court's error here is the same as the error addressed in Castano. How can the trial court here determine liability for multiple counts of fraud in a national class action when the crucial issue of reliance, which is highly dependent on the circumstances of each individual transaction, is a crucial factor in a majority of the claims asserted by the class? How can this conclusion be reached in this case where the facts relating to the knowledge and reliance issues vary from claimant to claimant? As the petitioners argue in their supporting briefs:
If there are this many variations between the representative plaintiffs concerning the circumstances in which they received Masonite siding, and if the element of reliance is a fact-based question dependent on each individual independent transaction, how could the trial court find that there existed such predominant issues necessary for certifying a national class action? How could this ruling be made in light of the fact that there are possibly three million more plaintiffs, each of whom bought a Masonite product in a separate independent transaction? Further, how can one justify the "predominance" finding in light of the state law variations concerning the requisite standards for showing reliance, especially where a trial court has made no jurisdictional survey in relation to the varying state tort laws for the determination of liability for fraudulent conduct?
I believe that Castano, the committee comments to Federal Rule 23, and the present fact situation show why a national class action asserting liability for fraudulent conduct cannot satisfy the predominance inquiry, especially where a trial court would be required by Shutts to apply the various state tort laws. Therefore, I believe that the trial judge abused his discretion in finding that common questions of law and fact predominate over questions involving only individual members.
The trial judge also ruled in his class certification order that certification of a national class action would satisfy the Rule 23 requirement that the class proceeding be "superior to other available methods for the fair and efficient adjudication of the litigation."
(Emphasis added.) Although the trial judge is correct in thinking that often the possibility of numerous separate lawsuits asserting the same issue of liability against a defendant may be a basis for certifying a class action, this possibility is not the controlling rationale for certifying a class action. The court in Castano was faced with a similar ruling entered by the trial judge, i.e., a finding of superiority based on the fact that the class mechanism would be superior to individual actions involving similar claims. The Court said:
84 F.3d at 747. The concern for judicial economy is not so great in cases where fraud is asserted, because in fraud cases individual trials tend to be a superior method for determining liability. The Castano court addressed this issue:
84 F.3d at 749. Further, "[t]he complexity of the choice of law inquiry also makes individual adjudication superior to class treatment," especially when the class certification is premature because of the failure of the trial court to make a jurisdiction survey of the various tort laws. Id. at 749-50. A premature class certification may violate a defendant's right to due process, because "[p]remature certification deprives the defendant of the opportunity to present that argument [the predominance argument] to any court and risks decertification after considerable resources have been expended." Id.
Additionally, the fact that the trial judge has ruled that the class action trial will be separated into different "phases" raises questions as to the superiority of the class action and also implicates the right to a jury trial. "The Seventh Amendment entitles parties to have fact issues decided by one jury, and prohibits a second jury from reexamining those facts and issues." Castano, 84 F.3d at 750. The United States Constitution prohibits multiple juries from determining a defendant's liability where the juries would consider common issues of law and fact, and the risk of decertification after trial implicates the right to due process. In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 184, 133 L. Ed. 2d 122 (1995); Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309 (5th Cir.1978). Although the trial judge has ruled only that the first stage of the litigation will involve a determination as to whether this siding is defective, that ruling does not negate the possibility that the petitioners' jury trial rights will be violated, especially in light of the fact that the trial court will be required to apply laws of different jurisdictions, many of which have adopted theories of comparative negligence. The Castano opinion clearly articulates this concern:
84 F.3d at 751. Based on what the court said in Castano, I believe the trial judge erred in determining that a national class action in this matter would be superior to other methods of adjudication.
Based on the foregoing, I must respectfully disagree with the majority in its refusal to require the respondent trial judge to file an answer and a brief relating to the issues I have raised in this dissent.
Although I concur in the result reached by the majority on the recusal issue, I do want to comment about statements made concerning counsel's filing of this petition. I reviewed extensively the petitioners' claims that the trial judge should disqualify himself; by concurring in the result on the recusal issue I should not be understood as agreeing with any statement in the majority opinion that would classify the petition here as frivolous. Although I recognize that the practice of trial judges in Alabama to frequently ask the attorneys on one side to draft a proposed order, I believe that trial judges should be careful to make sure that the other party or *1086 parties receive notice of the proposed order and an opportunity to object or respond. I do not suggest any bad faith on the part of any attorney representing any of the parties in this case. Although I agree that the petitioners have not shown an entitlement to a writ of mandamus on the recusal issue, I do not think their claim is frivolous. It was only after I fully considered the evidence they filed, and the legal arguments they advanced, that I was persuaded to concur in the result on the recusal issue. I realize, of course, that both the plaintiffs and the trial judge claim this petition is a frivolous attack and claim that this mandamus proceeding is intended to delay the trial and the ultimate resolution of the defendants' liability; I do not see it in this light, especially considering the fact that this action involves a class of potentially 3 million plaintiffs and the further fact that two federal courts have recently held, in comparable factual situations, that the trial judge erred in certifying a class action.
Rule 1 of the Alabama Rules of Civil Procedure states, in part, that the Rules should "be construed to secure the just, speedy and inexpensive determination of every action" upon its merits. This trial will be long, complicated, and expensive; expensive not only to the parties in the action, but expensive to the State. I believe it would be in the best interests of justice and fairness to at least order an answer and briefs so that we could examine the issues in more detail, because I believe them to be meritorious.
Class actions, properly utilized, can conserve judicial time and resources, but class actions can also raise serious concerns regarding due process and can often subject defendants to what has been termed "blackmail settlements." Class actions often place immense pressure on defendants to settle, considering the "all or nothing" nature of class action verdicts. See, Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d at 1298-99; Henry J. Friendly, Federal Jurisdiction: A General View 120 (1973).
I do not pass judgment on the merits of this class action, but in view of what this Court said in Bracy v. Sippial Electric Co., 379 So. 2d 582 (Ala.1980)that federal cases interpreting the Federal Rules of Civil Procedure are authority for interpreting the Alabama Rules of Civil ProcedureI believe the Fifth Circuit, in Castano, correctly decided several of the issues raised in this mandamus petition. I would require the respondent judge to file an answer and brief, and, unless convinced that the issues the court addressed in Castano were materially different from those presented in this case, I would issue the writ of mandamus and decertify the class.
Plaintiffs have moved for an order, pursuant to Rules 23(a)(1)-(4) and (b)(1)-(3) of the Alabama Rules of Civil Procedure, certifying a plaintiff class of all individuals and entities owning property in the United States on which Masonite hardboard siding manufactured since January 1, 1980 has been installed. The Court has considered the legal memoranda and documentary and testimonial materials submitted by the parties. The Court has also considered the oral arguments of counsel for the parties made during the October 16, 1995 hearing on plaintiffs' motion. For the reasons stated below, plaintiffs' motion is GRANTED pursuant to Rules 23(a)(1)-(4) and (b)(3).
The named plaintiffs are alleged to own property on which hardboard siding manufactured by defendants Masonite Corporation and/or International Paper Company (together "Masonite") since January 1, 1980 has been installed. Plaintiffs allege that, due to its defective design, Masonite hardboard siding is subject to moisture invasion problems, *1087 and that as a result of this defect, the siding swells, buckles, and prematurely rots, deteriorates and fails, thereby causing damage to property on which this siding is installed. Plaintiffs further allege that since at least 1980 Masonite has failed to disclose its knowledge of the design defect, and, in fact, has actively concealed this information from them and from the public. Plaintiffs further allege that through substantially uniform written advertisements in national consumer and professional publications, and in substantially uniform written warranties, Masonite falsely represented and warranted that its hardboard siding was not defective and was durable, sturdy, and designed for installation in all weather conditions and climates, including moist environments. Plaintiffs allege that Masonite's conduct is violative of consumer protection statutes and gives rise to liability for fraudulent suppression, fraudulent misrepresentation, breach of expressed and implied warranties and negligence. Plaintiffs seek compensatory and punitive damages and other relief.
The named plaintiffs' allegations and claims against Masonite are brought on their own behalf and on behalf of a proposed plaintiff class of all individuals and entities owning property in the United States on which Masonite hardboard siding manufactured since January 1, 1980 has been installed (the "Class" or "Masonite Class"). The named plaintiffs also allege claims on their own behalf and on behalf of proposed subclasses against defendant Stacy's Cash & Carry Building Materials, Inc., Ace Hardware, Inc., Scotty's Homebuilder's Supply, Inc. and Mobile Lumber & Building Materials, Inc. (the "Wholesaler/Retailer Defendants").
The Court conditionally certified the Masonite Class in an order dated February 3, 1995. In that order, the Court directed that following the completion of class certification discovery, the Court would receive additional briefs and arguments on the propriety of class certification in this action. After approximately seven months of discovery, the parties submitted lengthy and thorough legal memoranda, as well as numerous documents and deposition transcripts. In addition, at the Court's request, the parties submitted testimony by legal experts on class action issues. On October 16, 1995, the Court heard extensive oral argument from counsel for the parties. Finally, at the Court's direction, counsel submitted post-hearing letter briefs concerning questions raised by the Court during the hearing. After review and consideration of all of these materials, the Court finds that class action treatment of plaintiffs' claims against Masonite is appropriate under Rules 23(a)(1)-(4) and (b)(3).
Determination of plaintiffs' motion for class certification is committed to the sound discretion of this Court. Ex parte Gold Kist, Inc., 646 So. 2d 1339, 1341 (Ala.1994). Plaintiffs, however, bear the burden of establishing that the requirements of Rule 23 have been met. Ex parte Blue Cross & Blue Shield of Ala., 582 So. 2d 469, 477 (Ala.1991). In determining whether plaintiffs have satisfied their burden, the Court assumes as true the substantive allegations of plaintiffs' Amended Complaint. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 163 (1974); In re Copley Pharmaceutical, Inc., 158 F.R.D. 485, 489 (D.Wyo.1994). Although inquiry into the merits of the case is not appropriate in making the class certification decision (Eisen, 417 U.S. at 178; Ex parte Gold Kist, Inc., 646 So.2d at 1343), the Court may consider documents or testimony bearing on the Rule 23 elements of class certification. In this matter, both parties have submitted, and the Court has considered, substantial documentary and testimonial materials they contend support their respective positions.
Rule 23 of the Alabama Rules of Civil Procedure sets forth the prerequisites to all class actions in this state. The requirements of Rule 23(a) are as follows: (1) the class is so numerous that joinder of all members individually is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately *1088 represent the interests of the class. Ala. R.Civ.P. 23(a)(1)-(4).[1]
After demonstrating that the Rule 23(a)(1)-(4) requirements are satisfied, plaintiffs must also satisfy the elements enumerated in Rule 23(b)(1), (2) or (3). Ex parte Gold Kist, Inc., 646 So. 2d at 1341. The Court finds that the requirements of Rule 23(b)(1) and (2) are not here met. At issue, then, is whether plaintiffs have demonstrated that the "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to the other available methods for the fair and efficient adjudication of the controversy." Ala. R.Civ.P. 23(b)(3). The Court will first analyze the Rule 23(a) requirements and later discuss the Rule 23(b)(3) prerequisites.
The first requirement of Rule 23(a), numerosity, is satisfied if the proposed class is so numerous that joinder of all members is impracticable. Ala.R.Civ.P. 23(a)(1). "Impracticable" does not mean "impossible." Plaintiffs need only show that it would be extremely difficult or inconvenient to join all members of the Class. Bradley v. Harrelson, 151 F.R.D. 422, 426 (M.D.Ala.1993); 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, Civil 2d at § 1762. The precise number and identity of class members need not be shown for certification of the class; good faith and common sense estimates of the number of class members suffice. See, e.g., Id.; Ash v. Board of Electricians and the City of New York, 124 F.R.D. 45, 47 (E.D.N.Y.1989).
The numerosity requirement is satisfied in this action. Although the exact number of Class members is not known at this time, plaintiffs estimate that the Class may consist of at least hundreds of thousands of persons. Masonite believes the Class may include millions of homeowners. Classes of this size satisfy the Rule 23(a) numerosity requirement. 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, Civil 2d at § 1762.
The second element of Rule 23(a), commonality, is satisfied if one or more common questions of fact or law affect all or a substantial number of the Class members. Ala. R.Civ.P. 23(a)(2); Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 472 (5th Cir. 1986). The provision does not require that all the questions of law and fact raised by the complaint be common. In re Copley, 158 F.R.D. at 489; 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, Civil 2d at § 1763.
The Court finds that there are common issues of fact present in this action, which may include, but are not limited to, whether Masonite hardboard siding was defectively designed; whether Masonite intentionally, recklessly or negligently failed to disclose and concealed its knowledge that the siding was defective; whether Masonite intentionally, recklessly or negligently misrepresented the nature, quality, performance, or characteristics of its hardboard siding; and whether Masonite conspired with other manufacturers of hardboard siding for the purpose of concealing information about the nature, quality and performance characteristics of the siding. There are also common issues of law applicable to the several factual claims. The Court finds that plaintiffs have made the required showing of commonality under Rule 23(a)(2).
The third element of Rule 23(a), typicality, requires that plaintiffs demonstrate that the claims of the Class representatives are typical of the claims of the entire Class. Ala. R.Civ.P. 23(a)(3). The named plaintiffs' claims are typical if they arise from the same event, practice, or course of conduct that *1089 forms the basis of the Class claims, and if they are based on the same or substantially similar legal theories. Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir.1985); Jenkins, 782 F.2d at 472. The typicality requirement does not require that the Class representatives' claims be identical to those of the Class members. Id.
The Court finds that the Class representatives' claims arise from the same alleged course of conduct of Masonite and are based upon the same legal theories as those of the absent Class members. The Court finds that typicality is established because the Class representatives must prove the same elements to establish their causes of action that the absent Class members would need to prove to prevail if they brought individual claims against Masonite. The Court recognizes that, depending on the resolution of the choice of law questions, there may be variations in the law applicable to the claims of Class members. That the named plaintiffs and members of the Class may have suffered varying degrees of injury and damage does not defeat typicality. Appleyard, 754 F.2d at 958; Jenkins, 782 F.2d at 472; Bradley, 151 F.R.D. at 426-27; Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d at § 1764. Similarly, the existence of alleged affirmative defenses does not defeat typicality. Ex parte Gold Kist, Inc., 646 So. 2d at 1342; Rishcoff v. Commodity Fluctuations Sys. Inc., 111 F.R.D. 381, 382 (E.D.Pa.1986). Accordingly, the typicality requirement of Rule 23(b)(3) is satisfied.
The final requirement of Rule 23(a) is that the Class representatives and counsel representing the Class be able fairly and adequately to protect the interests of all members of the Class. Ala.R.Civ.P. 23(a)(4). Satisfaction of this rule requires that the representative plaintiffs' interests not be antagonistic to those of the Class, and that the representative parties' attorneys be qualified, experienced, and generally able to conduct the litigation. Jenkins, 782 F.2d at 472; Jordan v. Swindall, 105 F.R.D. 485, 488 (N.D.Ala.1985).
The Court finds that the named plaintiffs' interests are co-extensive and not in conflict with the interests of the Class members, and that the representative plaintiffs will fairly and adequately represent and protect the interests of all Class members. The Court has no reason to conclude that the representative plaintiffs will not prosecute this action vigorously, and take seriously their commitment to bear the responsibilities of serving as representative plaintiffs for the Class. Each of the named plaintiffs has testified at deposition and has responded to written discovery requests for the benefit of the Class. Similarly, the Court finds that the named plaintiffs are represented by experienced and qualified counsel, who the Court believes will vigorously and adequately represent the Class.
For the foregoing reasons, the Court finds that plaintiffs have satisfied each of the four requirements of Rule 23(a).
After establishing that the requirements of Rule 23(a) have been met, plaintiffs must also satisfy one or more of the elements enumerated in Rule 23(b). Plaintiffs seek class certification pursuant to Rule 23(b)(3), which is appropriate if the Court finds that (1) common questions of fact or law predominate over individual questions, and (2) class treatment of plaintiffs' claims is superior to other available methods for the fair and efficient adjudication of the controversy. For the reasons stated below, the Court finds that both the predominance and superiority requirements are met in this case.
To predominate, common issues must constitute a significant part of individual class members' cases. Jenkins, 782 F.2d at 1472; In re School Asbestos Litigation, 104 F.R.D. 422 (E.D.Pa.1984), aff'd in part, and vacated in part on other grounds, 789 F.2d 996 (3d Cir.) cert. denied, 479 U.S. 852 (1986); Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d at § 1778. Where, as here, a common course of conduct has been alleged arising out of a common nucleus of operative facts, common questions predominate. Id. Jury findings on common questions *1090 of fact and Court rulings on common issues of law will significantly advance the resolution of identical or substantially similar questions and issues which would require resolution in connection with individual claims.
That there may be difference in the degree of injury and damages suffered by individual Class members does not mean that individual issues predominate or that class certification is inappropriate. In re General Motors Corp. Pick-up Truck Fuel Tank Litigation, 55 F.2d 768, 817 (3d Cir.1995); In re School Asbestos Litigation, 789 F.2d 996, 1009-10 (3d Cir.1986); In re Domestic Air Transportation Antitrust Litigation, 137 F.R.D. 677, 692 (N.D.Ga.1991). Similarly, Masonite's alleged affirmative defenses do not present predominantly individual issues which preclude class certification in this action. Ex parte Gold Kist, Inc., 646 So. 2d at 1342; Rishcoff, 111 F.R.D. at 382. Further, if this Court concludes that the law of a single state cannot, consistent with Alabama choice of law rules, be applied to one or more of plaintiffs' claims, the Court is not persuaded that the variations in applicable state laws are so significant as to create predominant individual issues. General Motors, 55 F.3d at 818; In re School Asbestos, 789 F.2d at 1010. Accordingly, the Court finds that plaintiffs have satisfied the predominance requirement of Rule 23(b)(3).
Rule 23(b)(3) directs the Court to determine that a "class action is superior to other available methods for fair and efficient adjudication of the litigation." Ala.R.Civ.P. 23(b)(3). In determining whether the class action device is superior here, this Court must consider what other procedures, if any, exist for disposing of the dispute before it. The most obvious, and perhaps only, alternative to a class action is to remit the Class members to the institution of individual actions. The Court finds that class treatment of this action is far more favorable than the individual adjudication of even a small fraction of the Class members' claims. The Court finds that in the absence of class certification, it is probable that many claims would not be pursued because litigation costs would be prohibitive, and because many Class members would never know of their potential claims. The use of the class device in this action will serve the goals of economies of time, effort and expense by preventing the same issues from being litigated and adjudicated in multiple courts throughout the country.
The Court finds that a class action is the superior method of adjudicating this controversy for, among other reasons, those contemplated by Rule 23(b)(3)(A)-(D): (1) any interest of Class members in individually controlling the prosecution of separate actions is outweighed by the potential for the comprehensive and expedient resolution of this class action; (2) the number and type of individual lawsuits commenced by members of the Class have failed to result in relief to the overwhelming majority of the Class members; (3) it is desirable to concentrate the litigation in a single forum, to prevent repetitive pre-trial discovery, trial preparation and trial, and to avoid inconsistent adjudications; and (4) the Court foresees no insurmountable difficulties likely to be encountered in the management of this action.
Masonite argues that class treatment of this action would be unmanageable, and the Court should deny class certification on this basis. While the Court acknowledges that the task of managing this action will require the Court's time, attention and supervision, it finds that the case is manageable and that this Court is capable of managing it. The Court is persuaded that notice can be effectively communicated to members of the Class; that pre-trial discovery can be efficiently and expeditiously completed by the parties; and that all, or substantially all, of the controversy can be resolved through a multi-phased trial, if necessary. In addition, the Court is persuaded that the selection and application of the appropriate substantive laws to be applied to plaintiffs' claims and Masonite's defenses will be manageable.
For the foregoing reasons, the Court finds that plaintiffs have satisfied the predominance and superiority requirements of Rule 23(b)(3), and concludes that certification of *1091 the Masonite Class is appropriate under Rules 23(a)(1)-(4) and (b)(3).
In addition to moving for class certification under Rule 23(b)(3), plaintiffs seek certification under Rules 23(b)(1)(A) and 23(b)(2). These rules concern primarily claims for injunctive relief. Because the Court finds that plaintiffs' claims primarily are for monetary relief under Rule 23(b)(3), the Court finds certification under Rules 23(b)(1)(A) and (b)(2) inappropriate. Therefore, plaintiffs' motion for class certification under Rules 23(b)(1)(A) and (b)(2) is denied.
Plaintiffs originally moved for class action treatment for subclasses consisting of Class members whose Masonite siding was sold and/or distributed by one of the four Wholesaler/Retailer Defendants. Named plaintiffs Judy Naef, Mark Moseley, Gregory Stauffer, Joseph Bashaw and Henry Murphy contend that the siding installed on their respective properties was sold and/or distributed by one or the other of the Wholesaler/Retailer Defendants. The Court finds that creation of subclasses would not advance the interests of the Class and denies plaintiffs' motion for certification of the proposed subclasses. However, the aforementioned named plaintiffs are permitted to pursue their individual claims against the Wholesaler/Retailer Defendants in this action.
Class counsel are directed to submit to this Court, as soon as practicable after the entry of this Order, a proposed form of notice of the pendency of this class action; a summary notice for publication purposes; a proposed notice plan for dissemination of class notice; and a proposed notice order. If class counsel intend to argue that any or all of the costs of notice should be borne by Masonite, class counsel shall file and serve, with the proposed notice materials, a brief in support of that position. In the event plaintiffs file such a brief, Masonite shall have ten (10) days in which to file a responsive brief.
IT IS ORDERED that plaintiffs' motion for certification of the following plaintiff Class is GRANTED and that following the Class is CERTIFIED under Rules 23(a)(1)-(4) and (b)(3) of the Alabama Rules of Civil Procedure: All individuals and entities owning property in the United States on which Masonite hardboard siding manufactured since January 1, 1980 has been installed. Excluded from the Class are the defendants, any entity in which any of them has a controlling interest, and their legal representatives, assigns and successors.
IT IS FURTHER ORDERED that Judy Naef, John Brining, Mark Moseley, Gregory Stauffer, Judy Loumakis, Joseph Bashaw and Henry Murphy are designated and appointed as representatives for the Class.
IT IS FURTHER ORDERED that the following law firms are designated and appointed as class counsel for the certified Class: McRight, Jackson, Dorman, Myrick & Moore; Lieff, Cabraser, Heimann & Bernstein; Doffermyre, Shields, Canfield & Knowles; and Cunningham, Bounds, Yance, Crowder & Brown.
IT IS FURTHER ORDERED that plaintiffs' motion for class certification under Rules 23(b)(1)(A) and (b)(2) of the Alabama Rules of Civil Procedure is DENIED.
IT IS FURTHER ORDERED that plaintiffs' motion for certification of the Wholesaler/Retailer subclasses is DENIED; however, representative plaintiffs Naef, Moseley, Stauffer, Bashaw and Murphy are permitted to pursue their individual claims against the Wholesaler/Retailer Defendants in this action.
IT IS FURTHER ORDERED that as soon as practicable after entry of this Order, class counsel shall file and serve a proposed form of notice; a proposed form of summary notice for publication purposes; a proposed notice plan for dissemination of class notice; and a proposed notice order.
IT IS FURTHER ORDERED that if plaintiffs contend that any or all of the costs of notice should be borne by Masonite, they shall file and serve, along with their proposed notice materials, a brief in support of their *1092 position. If plaintiffs file such a brief, Masonite shall have ten (10) days in which to respond; and
IT IS FURTHER ORDERED that the motions to strike filed by the parties are DENIED.
SO ORDERED, this 15 day of November, 1995.
HOUSTON, Justice (concurring in the result in part and dissenting in part).
I concur in the result as to the recusal issue and as to the issue pertaining to disqualifying the plaintiffs' attorneys.
I would grant permission to appeal and would allow oral argument on the question of the propriety of the certification of a national class to pursue a claim against Masonite on the theory that all Masonite siding manufactured and installed since 1980 is inherently defective, where the class asserts theories of fraud, strict liability, negligence, and breach of warranty and seeks compensatory and punitive damages. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985); BMW of North America, Inc. v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996); Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996). Therefore, I dissent as to this issue.
[1] International Paper Company is also a defendant and a petitioner by virtue of its having purchased the Masonite Corporation. We shall refer to the two petitioners collectively as "Masonite."
[2] Despite Masonite's allegations of "numerous" ex parte contacts, the evidence was that the only time Judge Kendall actually spoke to the plaintiffs' attorney was when he first asked for the order to be drafted. According to the attorney, that conversation lasted about two minutes. The other communications either were relayed through staff or consisted of the delivery back and forth of the first and second draft of the order.
[3] The dissent erroneously states that Judge Kendall "also told the parties that he would hear arguments about this proposed order once it had been drafted and delivered." 681 So. 2d at 1086. Judge Kendall simply said that he would "circulate it to both sides."
[4] It should be noted that Rule 23 of the Alabama Rules of Civil Procedure is identical to Rule 23 of the Federal Rules of Civil Procedure.
[5] The majority seems to criticize the petitioners for filing a petition for extraordinary relief, as if it were frivolous. I do not think it is frivolous, especially in view of what the United States Supreme Court said in BMW of North America, Inc. v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), about the principles of state sovereignty and comity that forbid a State from enacting policies for the entire Nation or imposing its own policy choice on neighboring states. Class certifications that have extraterritorial application to customers of a national manufacturer could come within the "safe harbor" concept alluded to in that decision. In other words, corporate executives of Masonite and International Paper could reasonably have interpreted the relevant statutes and laws of other States as establishing safe harbors for the sale and distribution of their products, without fear of product liability lawsuits.
[6] Shutts dealt with a class action suit, certified in Kansas state court, where the plaintiffs claimed the defendant had impermissibly withheld certain oil royalties. The plaintiff class numbered 33,000 and had representatives from all 51 jurisdictions; less than 1% of the class members lived in Kansas and only one quarter of 1% of the gas leases involved in the lawsuit were on Kansas land. Shutts, 472 U.S. at 801, 105 S. Ct. at 2968.
[7] Mandamus review of a trial court's certification order is within this Court's power and is utilized to cure defects in a class certification order. See, Ex parte Central Bank of the South, 675 So. 2d 403 (Ala.1996); Ex parte Blue Cross & Blue Shield of Alabama, 582 So. 2d 469 (Ala. 1991).
[8] Although the majority states that this order is a "conditional" class certification, a review of the trial judge's certification order shows that the class was conditionally certified on February 3, 1995. A review of Appendix A, the November 15, 1995, class certification order, shows this order to be a final order.
[9] The Fifth Circuit in Castano commented on the applicability of Jenkins, which is also a Fifth Circuit case, to national tort class actions:
"The Jenkins court, however, was not faced with managing a novel claim involving eight causes of action, multiple jurisdictions, millions of plaintiffs, eight defendants, and over fifty years of alleged wrongful conduct. Instead, Jenkins involved only 893 personal injury asbestos cases, the law of only one state, and the prospect of a trial occurring only in one district. Accordingly, for purposes of the instant case, Jenkins is largely inapposite."
84 F.3d at 744.
[1] Rule 23 of the Alabama rules is identical to Rule 23 of the Federal Rules of Civil Procedure. "Cases interpreting the Federal Rules of Civil Procedure are authority in the construction of the Alabama Rules of Court Procedure." Bracy v. Sippial Elec. Co., 379 So. 2d 582, 584 (Ala. 1980). Federal cases interpreting and applying Federal Rule 23 are therefore cited and discussed herein as if interpreting and applying Alabama's Rule 23. | June 28, 1996 |
6978f89c-416d-4bea-9e16-89296e9503ad | Ex Parte City of Leeds | 677 So. 2d 1171 | 1950847 | Alabama | Alabama Supreme Court | 677 So. 2d 1171 (1996)
Ex parte CITY OF LEEDS; and Jack Courson.
(Re Paula MILLER, et al. v. CITY OF LEEDS, et al.).
1950847.
Supreme Court of Alabama.
May 17, 1996.
James W. Porter II and Tessa M. Thrasher of Porter, Porter & Hassinger, P.C., Birmingham, for Petitioner.
*1172 Kathryn H. Sumrall and F. Page Gamble of Jackson, Garrison, and Sumrall, P.C., Birmingham, for Paula Miller and Randall Scott Miller.
SHORES, Justice.
The petitioners, the City of Leeds and Jack Courson, a former mayor of Leeds, seek a writ of mandamus directing Circuit Judge William J. Wynn to vacate his order of February 27, 1996, directing Courson to disclose certain communications with James W. Porter II, attorney for the City of Leeds, which Courson claims are protected under the attorney-client privilege. We grant the writ.
The plaintiffs in a one-car motor vehicle accident that occurred in the City of Leeds sued the City, claiming that it had a duty to maintain, but had negligently maintained or had failed to maintain, the road where the accident occurred. Courson, the former mayor, was subpoenaed for a deposition as part of the plaintiffs' discovery in this case. The plaintiffs sought information concerning Leeds Resolution 87-1, which they say concerns the road where the accident occurred.
Courson states in an affidavit that he sought Porter's legal advice in order to prepare for the deposition. Courson states that it was his specific belief that his conversations with Porter were privileged, confidential, and private. According to Courson's affidavit, he and Porter communicated about matters relevant to the litigation. Courson says he was under the clear impression that Porter represented him for the purposes of the deposition. The deposition was held, and the plaintiffs' attorney sought to question Courson about the communications he had had with Porter. Courson refused to answer the attorney's questions, on the grounds that these communications were protected by the attorney-client privilege.
When Courson refused to answer, the plaintiffs' attorney telephoned the trial judge, Judge Wynn, to discuss the matter. Judge Wynn recommended that the deposition proceed while he researched the issues. At the end of the deposition, the plaintiffs' attorney again attempted to ask certain questions; Courson again objected, contending that the questions related to matters within the scope of the attorney-client privilege. Judge Wynn was telephoned again, and he advised the attorneys that the deposition should be concluded and that the matters Courson claimed were subject to the privilege should be briefed for him.
On February 26, 1996, the City and Courson moved for a protective order and filed a brief in support of their motion, asking Judge Wynn to protect Courson's communications with Porter as being within the attorney-client privilege. On the same day, the plaintiffs moved to compel Courson to divulge the contents of his conversations with Porter.
On February 27, 1996, Judge Wynn entered the following order:
The City and Courson have petitioned for the writ of mandamus, contending that the circuit court erred in granting the plaintiffs' motion to compel. This Court stayed the proceedings below and ordered an answer and briefs.
The writ of mandamus is an extraordinary remedy. One seeking it must show "(1) a clear legal right ... to the order *1173 sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991); Ex parte Johnson, 638 So. 2d 772, 773 (Ala.1994).
The petitioners contend that this case is governed by Rule 502, Ala.R.Evid., which deals with the attorney-client privilege. Rule 502(a)(1) defines a "client" who may claim the privilege as "a person, public officer, corporation, association, or other organization or entity, either public or private, that is rendered professional legal services by an attorney, or that consults an attorney with a view to obtaining legal services from the attorney." The petitioners argue that Courson is Porter's client under this definition, and that Courson may claim a privilege for his communications with Porter.
The petitioners cite Ex parte Time Insurance Co., 646 So. 2d 583 (Ala.1994). In that case the plaintiff sued Time Insurance Company, alleging breach of contract, bad faith, and fraud. Time Insurance hired Charles Whitley, an employee of Equifax Services, to investigate the claim. The plaintiff subpoenaed Whitley for a deposition. Upon receiving the subpoena, Whitley contacted the attorney for Time Insurance and arranged a meeting to prepare for the deposition. During the deposition, Whitley was asked if he and the attorney for Time had met before the deposition and, if so, what they had discussed at their meeting. The attorney for Time Insurance advised Whitley not to answer the question. The trial judge ordered Whitley to answer.
Whitley petitioned for a writ of mandamus directing the trial court to set aside the order compelling the disclosure of communications. We issued the writ, stating:
646 So. 2d at 584. Thus, this Court in Ex parte Time Insurance held that Whitley's communications with Time Insurance's attorney were privileged in their own right.
In granting the motion to compel in the present case, Judge Wynn relied on Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), and Nakajima v. General Motors Corp., 857 F. Supp. 100 (D.D.C.1994). However his reliance on these cases is misplaced, because neither case is on point with the facts before us. Upjohn concerns the scope of the attorney-client privilege when the client is a corporation, and Nakajima concerns whether communications made by a corporate employee to a corporate attorney are privileged based on the theory of agency. Courson is neither a corporation nor an employee of the City.
We have carefully considered the petition. The Alabama Rules of Evidence, adopted by this Court, went into effect January 1, 1996. Rule 502, "Attorney-Client Privilege," expresses Alabama case law and the historic common law embodied in § 12-21-161, Ala. Code 1975. We agree with the petitioners that Courson is a "client" under Rule 502(a)(1). Under Rule 502(b), "[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client." Under the provisions of Rule 502, we conclude that Courson may claim the attorney-client privilege for the confidential communications he had with Attorney Porter. Courson sought legal advice from Porter, the City's attorney, and their communications were *1174 made in confidence. The advice was sought in preparation for a deposition. Rule 502(c); Ex parte Time Insurance Co., supra.
For the reasons stated above, the petition for the writ of mandamus is due to be granted.
WRIT GRANTED.
HOOPER, C.J., and MADDOX, ALMON, HOUSTON, INGRAM, COOK and BUTTS, JJ., concur. | May 17, 1996 |
f975235f-336c-403c-b22f-a9a9aeea9601 | City of Mobile v. MAD, INC. | 684 So. 2d 1283 | 1930116 | Alabama | Alabama Supreme Court | 684 So. 2d 1283 (1996)
CITY OF MOBILE
v.
M.A.D., INC., d/b/a Lumberyard Cafe.
1930116.
Supreme Court of Alabama.
June 28, 1996.
Rehearing Denied September 6, 1996.
Wanda J. Cochran, Asst. City Atty., and John R. Lockett, City Atty., Mobile, for Appellant.
W. Lewis Garrison, Jr. and Ezra B. Perry, Jr. of Corley, Moncus & Ward, P.C., Birmingham, for Appellee.
J. Kenneth Smith, League Counsel, Montgomery, for Amicus Curiae Alabama League of Municipalities, in support of appellant.
PER CURIAM.
The dispositive issue presented in this case is whether Alabama's 56% tax on liquor, see Ala.Code 1975, § 28-3-200 et seq., is a tax levied on liquor retailers or whether it is a tax levied on consumers. This is not the first time this issue has been presented to this Court. For a better understanding of this *1284 case, see Guthrie Enterprises, Inc. v. City of Decatur, 595 So. 2d 1358 (Ala.1992), wherein this Court, acknowledging that it was making "a fairly close call," held that the liquor tax in question was a tax on consumers.
In Guthrie, the City of Decatur had levied a "license tax of ten (10) percent of the gross receipts of [the retailer's] business derived from the sale of all alcoholic beverages, except beer and table wine." 595 So. 2d at 1358. The importance of distinguishing between a tax on the seller/retailer (which tax is not required to be passed on to the consumer) and a tax on the consumer was fully explained in Guthrie:
595 So. 2d at 1360. (Emphasis in Guthrie.) In reversing a summary judgment for the city, this Court in Guthrie, relying on S & L Beverages & Blends, Inc. v. Ritchie, 567 So. 2d 341 (Ala.Civ.App.1990), concluded that the legislature must have intended for the state liquor tax to be a consumer tax. The basic rationale of Ritchie, and, thus, of this Court's holding in Guthrie, was that the liquor tax statutes should be construed so as to be in harmony with the statutes controlling the taxation of beer and table wine, which clearly provide that the taxes levied on those beverages are consumer taxes, with the person or entity paying the tax in the first instance acting as an agent for the state for the collection and payment of taxes. See Ala.Code 1975, §§ 28-3-184 ("malt or brewed beverages") and 28-3-190 ("beer"), and § 28-7-16 ("table wine"). This Court in Guthrie, quoting in part from Ritchie, also stated:
595 So. 2d at 1361-62.
Like the retailer in Guthrie, the retailer involved in this case challenged the license tax imposed by the city on the ground that the state liquor tax was a consumer tax. Unlike the City of Decatur in Guthrie, which levied its tax on the "gross receipts" of retailers, the City of Mobile in this case levied a license tax on "the purchase price paid by the retailer for all liquor purchases from all sources." Relying on the rationale of Guthrie, however, the retailer argued in the trial court, as it does now, that the 56% state liquor tax should not constitute a part of the value of its inventory for purposes of determining the amount of tax owed to the city. Following the rationale of Guthrie, the trial court agreed with the retailer, entered a summary judgment in its favor, and ordered a refund of the taxes allegedly overpaid. The city has appealed, arguing that the state liquor tax should be construed as falling on the retailer, not the consumer, and that Guthrie, and the case on which it primarily relied, Ritchie, were incorrectly decided and should be overruled. After carefully considering the record and the briefs of the parties, as well as the amicus curiae brief filed by the Alabama League of Municipalities, we agree.
The six statutes that together comprise Alabama's tax on liquor were initially enacted in 1943 (Ala.Acts 1943, No. 99, codified at § 28-3-200); 1955 (Ala.Acts 1955, 2d Ex. Session, No. 78, codified at § 28-3-201); 1959 (Ala.Acts 1959, No. 312, codified at § 28-3-202); 1969 (Ala.Acts 1969, No. 550, codified at § 28-3-203); 1979 (Ala.Acts 1979, No. 79-761, §§ 4-6, codified at § 28-3-204); and 1980 (Ala.Acts 1980, No. 80-478, codified at § 28-3-205), respectively. These statutes provide that the tax shall be collected by the Alcoholic Beverage Control Board from "the purchaser." By law, liquor retailers must purchase their liquor from the ABC Board. None of these statutes authorizes or requires "the purchaser" (the retailer) to pass the tax on to the consumer.
In 1979, during the same legislative session in which it enacted what is codified at § 28-3-204, imposing an additional three percent tax on liquor, the legislature also levied a tax on "any malt or brewed beverages." See Ala.Acts 1979, No. 79-802, § 1, codified at § 28-3-184. In doing so, the legislature specifically provided:
In the 1980 legislative session, the same session in which it enacted what is codified at § 28-3-205, imposing an additional 10% tax on liquor, the legislature also levied a tax on "table wine." See Ala. Acts 1980, No. 80-382, § 16, codified at § 28-7-16. In doing so, the legislature again used specific language indicating its intention that that tax be on the consumer:
Also during the 1980 legislative session the legislature passed Act No. 80-529, § 3, codified at § 28-3A-3, which provides in pertinent part:
As this legislative history clearly indicates, the legislature knows how to make a tax a consumer tax. The legislature used unequivocal language in § 28-3-184, imposing a tax on "malt or brewed beverages" and in § 28-7-16, imposing a tax on "table wine," to express its intention that those taxes be passed on to the consumer. It is significant, we think, that when the legislature was using this specific language during the 1979 session (§ 28-3-184) and the 1980 session (§ 28-7-16), it chose not to incorporate it into either § 28-3-204 or § 28-3-205, which imposed additional taxes on liquor. This strongly suggests that the legislature intended to make a distinction for tax purposes between "malt or brewed beverages" and "table wine" on the one hand, and liquor on the other. Furthermore, as the opinion in Guthrie indicated, the Alabama Department of Revenue, the administrative agency charged with the general responsibility of supervising Alabama's tax laws, Ala.Code 1975, § 40-2-11, had, before the Guthrie and Ritchie decisions, interpreted the liquor tax statutes as imposing a tax on the retailer. Such an interpretation, although not controlling, was reasonable and, thus, was entitled to great weight and deference by this Court and by the Court of Civil Appeals. See Farmer v. Hypo Holdings, Inc., 675 So. 2d 387 (Ala. 1996).
Finally, we are not persuaded that the following sentence in Guthrie is a correct basis for the holding in that case:
595 So. 2d at 1365. As previously noted, the legislature in 1980 authorized the licensing of persons for the retail sale of liquor for off-premises consumption. The legislature did so during the same legislative session in which it enacted § 28-3-205, imposing an additional tax on liquor. Also, as noted earlier, the legislature in 1980 did not incorporate into § 28-3-205 the specific language that it *1288 used in § 28-7-16, in which it imposed the consumer tax on table wine. Broadwater resolved a dispute between private club licensees (see § 28-3A-12) and private lounge licensees (see § 28-3A-11) as to whether the lounge licensees were entitled to sell liquor at retail for off-premises consumption; however, it was § 28-3A-3 that authorized the licensing of liquor retailers, not the decision in Broadwater.
Based on the foregoing, we conclude that Alabama's liquor tax is a tax on the retailer. As Justice Maddox noted in his dissenting opinion in Guthrie, the liquor tax was levied on the retailer as "a part of what it cost[s] the retailer to do business." 595 So. 2d at 1367. The retailer may pass the tax along to the consumer in the form of a price increase; however, that is not statutorily required. We hold, therefore, that this case is controlled by Merchants Cigar & Candy Co. v. City of Birmingham, 245 Ala. 587, 18 So. 2d 137 (1944), and the line of cases that follows that decision. To the extent that Guthrie is inconsistent with this opinion, it is hereby overruled.
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES, HOUSTON, and BUTTS, JJ., concur.
HOOPER, C.J., and KENNEDY, J., dissent.
KENNEDY, Justice (dissenting).
I am not persuaded that Guthrie Enterprises, Inc. v. City of Decatur, 595 So. 2d 1358 (Ala.1992), released by this Court only four years ago and concurred in by a majority of the Court, was incorrectly decided. In my view, Guthrie, considered in its entirety, was correct. Also, in keeping with the limits imposed upon the Court by the doctrine of stare decisis, I would not overrule established precedent based on what amounts to the conclusion that the legislature may have intended an interpretation different from that given by the Court in Guthrie.
[1] We note, for clarification, that B & B Beverage did not hold that the liquor tax was a consumer tax. Then Judge Ingram, writing for the majority, addressed only the issue whether retailers were denied equal protection of the law because they were required by law to collect from consumers a sales tax on the state liquor tax that the retailers were required to pay. State stores were not required to do so. Presiding Judge Bradley concurred in Judge Ingram's equal protection discussion; however, he wrote specially to state that, in his opinion, the state liquor tax was a consumer tax. Judge Holmes dissented from the majority opinion and stated the following with respect to Judge Bradley's special concurrence:
"In my opinion, Presiding Judge Bradley's comments regarding `statutory interpretation of the liquor tax statutes' are incorrect. Needless to say, I disagree with his comments and his conclusions." | June 28, 1996 |
c960afe4-0cea-493b-9b8a-813c39deef16 | Ex Parte Trinity Industries, Inc. | 680 So. 2d 262 | 1950142 | Alabama | Alabama Supreme Court | 680 So. 2d 262 (1996)
Ex parte TRINITY INDUSTRIES, INC.
(In Re TRINITY INDUSTRIES, INC. v. Vallie CUNNINGHAM).
1950142.
Supreme Court of Alabama.
May 3, 1996.
Rehearing Denied June 21, 1996.
*264 Charles F. Carr, Rhonda Pitts Chambers and Donald B. Kirkpatrick II of Rives & Peterson, Birmingham, for Petitioner.
Robert W. Lee, Jr. of Lee & Sullivan, P.C., Birmingham, for Respondent.
John J. Coleman III and Tom S. Roper of Balch and Bingham, Birmingham, for Amicus Curiae Business Council of Alabama in support of petitioner.
David J. Middlebrooks and Brent L. Crumpton of Lehr, Middlebrooks & Proctor, P.C., Birmingham, for Amici Curiae Southeast Alabama Medical Center, Rust International, and O'Neal Steel, Inc., in support of petitioner.
Amy K. Myers of Bradley, Arant, Rose & White, Birmingham, for Amicus Curiae Alabama Self-Insurers Association, in support of petitioner.
Michael M. Eley, Bart Harmon and Bryan O. Balogh of Webb & Eley, P.C., Montgomery, for Amici Curiae Association of County Commissions Workers' Compensation Self-Insurance Fund, Alabama Forest Products Industry Workers' Compensation Self-Insurance Fund, Occupational Safety Association *265 of Alabama Workers' Compensation Fund and Alacomp's, in support of petitioner.
Terry A. Moore of Adams and Reese, Mobile, for Amici Curiae Professional Business Owners Ass'n, Comprehensive Containment Services, Inc., and Med/Manage Inc.
N.T. Braswell III and William H. Webster of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Amici Curiae James River Corporation, Skilstaf, Fieldcrest Cannon, Inc., AAA Cooper Transportation, Weyerhaeuser, Inc. and Browning-Ferris Industries, Inc., in support of petitioner.
Patricia K. Rea of Fann & Rea, P.C., Birmingham, for Amicus Curiae Municipal Workers Compensation Fund, Inc., in support of petitioner.
HOUSTON, Justice.
This case presents a question regarding the proper test for determining causation in workers' compensation cases and a question regarding the proper standard for reviewing workers' compensation cases.
On September 2, 1992, Vallie J. Cunningham, who worked as a punch press operator, was rendered permanently and totally disabled as the result of a stroke he suffered while at the workplace of his employer, Trinity Industries, Inc. On December 4, 1992, Cunningham sued Trinity, seeking workers' compensation benefits. The trial court, after a bench trial, entered a judgment for Cunningham, "find[ing] that [Cunningham had] satisfied the dual burden of proving legal and medical causation." Trinity appealed, arguing, among other things, that Cunningham had failed to present substantial evidence of either legal or medical causation. The Court of Civil Appeals affirmed. Trinity Industries, Inc. v. Cunningham, 680 So. 2d 253 (Ala.Civ.App.1995). We granted certiorari review to determine whether, in affirming, the Court of Civil Appeals had erred in overruling caselaw regarding the test for causation in "nonaccidental" injury cases and whether that court had misconstrued the "substantial evidence" standard of review.
Cunningham's duties required him to continually lift pieces of metal weighing 15 pounds; he would place a piece in the punch press machine, punch it, remove it, and pick up the next piece.[1] On the day he suffered the stroke, Cunningham began his work around 7:00 a.m., and he continued to work until around 11:30 a.m., taking only one 15-minute break. After he left his machine around 11:30, Cunningham walked to the bathroom, sat down on the toilet, and while sitting there experienced symptoms of a stroke. He was later informed that he had suffered a stroke, and that he was an undiagnosed hypertensive. Before the stroke, Cunningham had never experienced high blood pressure.
We have repeatedly stated that an employer is not the absolute insurer of an employee's health and should bear only the costs of compensating employees for accidents that arise out of and in the course of their employment.[2] See, e.g., Reynolds Metals Co. v. Gray, 278 Ala. 309, 178 So. 2d 87 (1965). Section 25-5-31, Ala.Code 1975, provides:
Whether an accidental injury "arises out of" the claimant's employment is basically a question of whether there is a causal relationship between the claimant's performance of his or her duties as an employee and the complained-of injury. Determining whether a causal relationship has been established between the performance of the claimant's duties as an employee and the complained-of injury is especially difficult and troublesome when the complained-of injury was not produced by some sudden and traumatic external event.[3] For simplicity, we will refer to such events as "nonaccidental" injuries. More than 50 years ago, in Pow v. Southern Constr. Co., 235 Ala. 580, 180 So. 288 (1938), this Court held that the term "accident arising out of employment" included more than just incidents in which injuries arise from sudden and traumatic external causes. In Pow, the Court allowed recovery to the family of a person who had contracted and had subsequently died from pneumonia, after having been forced by his employment duties to work outside in very wet conditions. However, the Court did not hold that every injury that could conceivably be argued to have been linked to a person's employment would be compensable. Instead, the Court held that a claimant in such a situation must prove:
Pow, 235 Ala. at 584, 180 So. at 290 (quoting Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, 569 (1934)).
The Court of Civil Appeals, in City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So. 2d 729 (Ala.Civ.App.1975), grappled with the very difficult problem of determining when heart attacks and other similar physical ailments of a "nonaccidental" nature, which, like pneumonia, can and do occur independently of on-the-job risks, "arise out of" the claimant's employment and, therefore, are compensable under our workers' compensation statutes. That court, following the general development of workers' compensation law nationwide, adopted and further refined the two-part causation test set out in Pow v. Southern Constr. Co.[4] In order to establish "legal causation," which is the first prong of the causation standard that the Howard case set out, the injured employee had to show that "the performance of the duties for which he [or she] is employed ... expose[d] [him or her] to a danger or risk materially in excess of that to which people not so employed are exposed [ordinarily in their everyday lives]." Howard, 55 Ala.App. at 705, 318 So. 2d at 732. Once a claimant establishes "legal causation," he or she then must establish "medical causation," the second prong of the Howard standard, by producing evidence tending to show that the particular exposure to risk proven in regard to prong one "was in fact [a] contributing *267 cause of the [complained-of] injury." Howard, 55 Ala.App. at 706, 318 So. 2d at 732.
In its review of this case, the Court of Civil Appeals overruled Howard, based on its conclusion that the holding in Howard "was contrary to our Supreme Court's holding in [Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So. 2d 159 (1957)]." Trinity, 680 So. 2d at 257. In Wynn, this Court allowed recovery for a claimant who was "stricken with a cerebral hemorrhage" while he was shoveling coal for his employer. The Court of Civil Appeals correctly pointed out:
Trinity, 680 So. 2d at 256.
The causation standard applied in Howard is not inconsistent with this Court's holding in Wynn. A claimant does not have to show any "unusual strain or overexertion" in order to satisfy the first prong of the Howard standard. Rather, to establish "legal causation," one seeking redress under the Workers' Compensation Act for "nonaccidental" injuries need only establish that the performance of his or her duties as an employee exposed him or her to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives. Clearly, a person shoveling coal is exposed to dangers materially in excess of the dangers to which we all face in merely living. The Howard "legal causation" standard was intended to act, and does act, to prevent employers from being unfairly saddled with the cost of being made the absolute insurer of an employee's health. Without a "legal causation" standard, a person who becomes ill or dies because of a natural cause, such as an aneurysm or slipping into a diabetic coma, unrelated to any job-related risk, would be able to recover under our workers' compensation statute merely because he or she was lucky enough to have the disabling event resulting from that natural cause occur at the place of employment or just after the employee has left the place of employment. Such a result was not intended by the legislature when it enacted our workers' compensation law. See, e.g., Reynolds Metals Co. v. Gray, 278 Ala. 309, 178 So. 2d 87 (1965); B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So. 2d 37, cert. denied, 287 Ala. 726, 253 So. 2d 45, 46 (1971).
The confusion as to whether the Court of Civil Appeals in Howard overstepped the bounds set by our earlier cases such as Southern Cotton Oil Co. v. Wynn is a product of the evolutionary nature of Alabama's workers' compensation law. The Court in Wynn stated that "in order to show [causation], the plaintiff must establish a logical causal connection between his work and the injury." 266 Ala. at 331, 96 So. 2d at 162 (emphasis added). In Howard, the Court of Civil Appeals, continuing the on-going effort of Alabama's appellate courts to chart the boundaries of our workers' compensation law and to create coherent and workable standards, *268 enunciated a unified standard[5] of causation for all "nonaccidental" injury cases. The Court of Civil Appeals in Howard added form to the "logical connection" causation test set forth by this Court in Wynn, by slightly modifying the Pow standard in order to create a general standard for "nonaccidental" injury cases. The Court of Civil Appeals in Slimfold Mfg. Co. v. Martin, 417 So. 2d 199, 201-02 (Ala.Civ.App.1981), cert. quashed, 417 So. 2d 203 (Ala.1982), aptly stated:
After much research, we must conclude that Howard sets out the correct causation standard for all workers' compensation claims relating to "nonaccidental" injuries.[6]
Cunningham's injury occurred on September 2, 1992; therefore, this case is governed by the new Workers' Compensation Act, Ala. Acts No. 92-537, which became effective May 19, 1992. The new Act provides that "[i]n reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness." Ala.Code 1975, § 25-5-81(e)(1). It further provides that "[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence." Ala.Code 1975, § 25-5-81(e)(2).
Although the new Act does not define "substantial evidence," this Court has defined that term as it is used in Ala.Code 1975, § 12-21-12(d), which was enacted before the new Workers' Compensation Act and which pertains to "all civil actions brought in any court of the State of Alabama"; this Court has defined the term "substantial evidence," as it is used in § 12-21-12(d), to mean "evidence of such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989). We need look no further for an adequate, applicable definition. See, also, Ala.Code 1975, § 6-5-542(5); and Clements v. Dr. John Alvan Stewart, P.C., 595 So. 2d 858, 861 (Ala.1992) (quoted with approval in Campbell v. Williams, 638 So. 2d 804 (Ala.), cert. denied, ___ U.S. ___, 115 S. Ct. 188, 130 L. Ed. 2d 121 (1994)), wherein the Court stated that the difference between the definition of "substantial evidence" as that term is used in § 6-5-542(5) and the definition of that term as it is used in § 12-21-12(d) is a "difference without a distinction." Therefore, under the applicable standard of review, we will not reverse the trial court's finding of fact if that finding is supported by substantial *269 evidenceif that finding is supported by "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West; § 12-21-12(d). To the extent that Whitsett v. BAMSI, Inc., 652 So. 2d 287 (Ala.Civ.App. 1994), and its progeny are inconsistent with this standard, they are overruled.
Trinity argues that Cunningham failed to produce substantial evidence as to the causation element of his workers' compensation claim. As we have stated above, in order to establish causation in a workers' compensation case where the injury is nonaccidental, meaning that the injury was not caused by a sudden and unexpected external event, a claimant must satisfy a two-part causation test by producing substantial evidence establishing both (a) legal causation and (b) medical causation. See City of Tuscaloosa v. Howard, 318 So. 2d 729 (Ala.Civ. App.1975); and Ex parte Moncrief, 627 So. 2d 385, 388 (Ala.1993) (citing Hammons v. Roses Stores, Inc., 547 So. 2d 883 (Ala.Civ.App. 1989)) ("for an injury to be compensable under the Workers' Compensation Act, the employee must establish both legal and medical causation"). Merely showing that there is a close spatial or temporal relationship between the injury and the place or time of the claimant's performance of his or her job is not in itself always sufficient to satisfy either of the two prongs of Alabama's workers' compensation nonaccidental injury causation test.
After reviewing the evidence submitted at trial, we think it is clear that Cunningham produced substantial evidence tending to show legal causationthat in performing his duties as a punch press operator he was exposed to "danger or risk materially in excess" of that danger to which all persons are ordinarily exposed in their everyday lives. Howard, 318 So. 2d at 732. Cunningham produced more than adequate evidence to establish that he was exposed to cardiovascular stress in the operation of his punch press "materially in excess" of the base-line level of risk to which we all are exposed in merely living. However, a much closer question exists as to whether Cunningham produced substantial evidence tending to establish "medical causation," the second prong of the Howard nonaccidental injury causation standard.
In order to establish medical causation, a claimant like Cunningham must produce substantial evidence tending to show that the exposure to risk or danger proven in step one of the Howard test "was in fact [a] contributing cause of the injury" for which benefits are sought. Howard, 318 So. 2d at 732. "Whether the claimant has satisfied this test ... must be determined on a caseby-case basis." Ex parte Price, 555 So. 2d 1060, 1062 (Ala.1989). We further stated in Price that a claimant need not always produce medical expert testimony as to the issue of medical causation in order to carry his burden of proof. Id. In determining whether substantial evidence was produced at trial as to medical causation, we must look to see whether "evidence [was produced at trial] of such weight and quality that fair-minded persons in the exercise of impartial judgment [could] reasonably infer that the risk or danger proven to have existed "was in fact [a] contributing cause of the injury."
Cunningham had to produce substantial evidence linking his stroke to the cardiovascular stress he was subjected to in running his punch press. Because the nature and origin of strokes is obviously beyond the understanding of the average person, this case falls within the Price exception, so that medical evidence in the form of expert medical testimony or excerpts from learned medical treatises was necessary to establish medical causation. See Charles Gamble, McElroy's Alabama Evidence, § 128.10(1), pp. 346-47 (4th ed. 1991) ("It goes without saying that there are certain medical matters which are subject only to expert testimony and are outside the understanding of the lay witness."). As shown from the testimony at trial, doctors and medical researchers themselves disagree vigorously as to what can actually cause the onset of a stroke. See also Charles J. Frankel, James G. Zimmerly, and Richard M. Patterson, eds., Lawyers' Medical Cyclopedia of Personal and Allied Specialties, Vol. 5A, *270 § 34.27a(E) (Supp.1984 & 1995). The question for this Court then becomes whether, when viewed in the light most favorable to Cunningham, as it must be viewed under the applicable standard of review, the expert medical testimony presented by Cunningham in conjunction with his other evidence constitutes "substantial evidence" of "medical causation," as those terms are defined above.
Dr. Gordon Kirschberg, a neurologist testifying for Cunningham, testified as follows:
In order to establish "medical causation" in a workers' compensation case, a claimant need only produce substantial evidence tending to show that the exposure to risk proven in step one of the Howard twopart causation test, in this case cardiovascular stress, "was in fact [a] contributing cause of the injury," in this case the stroke. Howard, 318 So. 2d at 732 (emphasis added). Cunningham was not required to produce substantial evidence indicating that the exertion was the only factor contributing to the onset of the stroke. Although Dr. Kirschberg's testimony seems to be weak and at *271 points contradictory, he does conclude that the cardiovascular stress, associated with the strenuous work that Cunningham had been performing for four and one-half hours before collapsing while on a break, could have precipitated the onset of Cunningham's stroke.
266 Ala. at 331, 96 So. 2d at 162 (emphasis added). In rejecting the employer's assertion that Wynn's evidence of causation was insufficient, this Court stated: "[T]he circumstances of the plaintiff's injury, considered in conjunction with the medical testimony, support a fair inference that the injury was caused by the exertion of [Wynn's] work." 266 Ala. at 332, 96 So. 2d at 163. Although Wynn was decided before the legislature adopted a substantial evidence standard for workers' compensation actions, Wynn`s reasoning is still valid. In the context of certain injuries or diseases, the origin of which in general can be scientifically linked to certain strong risk factors or to certain stimuli but the origin of which as to any one person cannot be scientifically determined with certainty, medical evidence of causation in a workers' compensation case, whether in the form of testimony or treatise excerpts, need only show that the work-related risk could have been a precipitating factor in bringing about the onset of the disease.[7]
If we were to require a higher level of certainty from medical experts to establish medical causation in cases like this one, we would effectively be removing diseases like stroke from the list of compensable diseases. We would also be encouraging claimants to seek out experts of lower quality and of less integrity. Cunningham's expert testified honestly and forth-rightly. Because of the peculiar nature of strokes, no expert could have legitimately testified that any one factor definitely caused Cunningham's stroke. When we consider Dr. Kirschberg's expert opinion testimony in conjunction with the circumstances of the injury, we must conclude that Cunningham produced substantial evidence of medical causation.
Although the Court of Civil Appeals applied an incorrect rationale, it reached a correct decision. Its judgment is affirmed.
AFFIRMED.
*272 SHORES,[*] KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent.
HOOPER, Chief Justice (dissenting).
Ala.Code 1975, § 25-5-31, provides for compensation to be awarded for personal injury or death "caused to an employee by an accident arising out of and in the course of his employment." The key question in this case was whether the employee's stroke arose out of the course of his employment.
Since 1975, the test in Alabama for determining whether a worker's job caused certain health conditions has been a two-fold determination based on both a legal test and a medical causation test. City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So. 2d 729 (Ala. Civ.App.1975). This two-part test has been used most frequently in regard to heart attack claims, but it has also been used in other cases where there was the strong possibility that the injury to the employee had occurred because of pre-existing latent health problems and was not truly work-related. Hellums v. Hager, 360 So. 2d 721 (Ala.Civ.App. 1978).
The Court of Civil Appeals opinion in this case explicitly overruled Howard. See Ex parte Trinity Industries, Inc., 680 So. 2d 253 (Ala.Civ.App.1995). While I must commend the majority of this Court for attempting to uphold Howard, its opinion has the same practical effect as overruling Howard. This problem requires me to dissent.
Several aspects of the majority opinion cause this problem. One of these aspects is the following statement regarding the facts: "Before the stroke, Cunningham had never experienced high blood pressure." However, neither party claims Cunningham had never experienced high blood pressure. Cunningham had neglected to have his blood pressure checked. The medical testimony indicated he was "undiagnosed hypertensive."
Howard involved a fireman who suffered a heart attack. The fireman suffered chest pains while doing maintenance labor at a fire station, and 11 days later had a heart attack that required hospitalization. The trial court awarded compensation to the fireman. The Court of Civil Appeals in Howard held that the trial court was to determine "if the job caused the injury or death." Howard, at 732, 318 So. 2d 729. Howard set out a twopart causation testlegal and medical. The legal causation test: "If in the performance of the duties for which he is employed an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment...." Howard, at 732, 318 So. 2d 729. (Emphasis added.) The medical causation test: "that such exposure, though operating with or upon other exposure common to all, was in fact, the contributing cause of the injury." Howard, at 732, 318 So. 2d 729. (Emphasis added.) In order for the employer to be liable, the employee must satisfy both tests.
The majority opinion describes the Howard test for legal causation as imposing on a worker seeking compensation the burden of showing "that the performance of his or her duties as an employee exposed him or her to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives." It added, "Clearly, a person shoveling coal is exposed to dangers materially in excess of the dangers to which we all face in merely living." 680 So. 2d at 267. However, Howard's legal causation test requires that the risk be higher for the plaintiff than for someone not so employed, not higher than for someone "merely living." Compared to "merely living," being employed anywhere doing virtually anything would probably expose the employee to a higher risk. As Cunningham's expert witness, Dr. Kirschberg, testified at trial, "Any sort of physical or excessive mental activity can [raise blood pressure]." Dr. Kirschberg also stated: "[Y]ou can have elevated blood pressure causing or having some cause of influence on the possibility of stroke." Thus, *273 the Howard legal causation test is effectively eliminated when comparing an employee's risk at work to that of "merely living."
The majority opinion restates the medical causation test of Howard. The Howard test is "that such exposure [to a workplace risk], though operating with or upon other exposure common to all, was in fact, the contributing cause of the injury." Howard, at 732, 318 So. 2d 729. The majority today restates that test: "[that] the particular exposure was in fact [a] contributing cause of the [complained of] injury." 680 So. 2d at 266-67. Thus, the majority today changes the medical causation test from a question of whether the "exposure" is "the cause" or "the contributing cause" to a question whether it is "a cause." The practical implications of this change are huge. Requiring the plaintiff to prove that the work was "the cause" or "the contributing cause" puts the burden on the plaintiff to offer substantial evidence to support a finding that the employment was the leading cause of the injury. The standard stated today"a cause"requires evidence only that the employment was one factor among several contributing factors. This change in the Howard legal and medical causation tests eliminates any differentiation between a person's lifestyle and his or her employment. In other words, a person with a family history of heart disease, who smokes two packs of cigarettes a day, and who never exercises could say, "I was at work" (that would prove an exposure above "merely living"); "I had a heart attack while at work." (Being "at work" would be easy to prove as a factor in a subsequent heart attack because the plaintiff almost certainly would have suffered more stress while at work.) The standard as stated in the majority opinion means that a person who, while at work, suffers from the ill effects of any disease or condition could demand workers' compensation from his or her employer. It makes the employer "the insurer" of the employee.
In 1992 the Legislature stated the standard of review for determining the amount of evidence required to support "pure findings of fact" in workers' compensation actions. § 25-5-81(e)(2). The majority today quotes from Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 331, 96 So. 2d 159, 162 (1957), and then states: "Wynn `s reasoning is still valid." 680 So. 2d at 271. In Wynn, this Court applied the "scintilla" standard of review for determining the evidence required to support findings of fact. The majority today applies the reasoning of Wynn in discussing the evidence required to find causation.
In addition, Cunningham's injury occurred on September 2, 1992; therefore, this case is governed by the Workers' Compensation Act, as amended by Ala.Acts 1992, Act No. 92-537, which became effective May 19, 1992. Section 25-5-81(c) provides:
(Emphasis added.) Section 25-5-81(c) defines "clear and convincing" proof:
Arguably, the stroke that Cunningham suffered resulted from "gradual deterioration." The majority does not address the application of § 25-5-81(c) to this fact situation.
Section 25-5-81(e) provides:
*274 An appellate review of the standard of proof is de novo, under § 25-5-81(e). Therefore, the evidence requirement of § 25-5-81(c) must be met in order to uphold the trial court's decision in favor of Cunningham. The majority holds that the trial court's decision is to be upheld if it is supported by "substantial evidence." However, "substantial evidence" is not the standard of proof set by the Legislature in § 25-5-81(c). "Substantial evidence" is the standard of review of the trial court's "pure findings of fact." The Legislature has provided that generally in workers' compensation cases the standard of proof is "preponderance of the evidence." In cases "involving injuries which have resulted from gradual deterioration or cumulative stress disorders," the standard of proof is "clear and convincing evidence." I am not convinced the trial court applied the correct standard of proof in this case.
Cunningham's injury is not a typical accident-related injury. As even Cunningham's expert testified: "[T]he most common causes [of a stroke] are atherosclerosis or so-called hardening of arteries and hypertension or high blood pressure, but other things also contribute greatly, either via those two or by themselves. For example, smoking is a major contributor." Cunningham was a heavy smoker, he was overweight, and he was an undiagnosed hypertensive. The gradual deterioration of Cunningham's health, based on these non-work-related factors is the better explanation for the cause of his stroke. Therefore, the standard used for injuries caused by "gradual deterioration" appears to be the more appropriate standard. "Clear and convincing" evidence means evidence that, when weighed against the evidence in opposition, produces "a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion." Ala.Code 1975, § 25-5-81(c). In this case, the doctor that treated Cunningham stated that Cunningham's stroke was not related to his work. The only expert witness provided by Cunningham gave very weak testimony in support of Cunningham's claim. Dr. Nasrollah Eslami, Cunningham's treating physician, testified that he did not believe Cunningham's employment at Trinity contributed to his stroke. Dr. Eslami testified: "See, a stroke, it doesn't happenit doesn't happen as a result of one factor in a short period of time. It is a disease process that goes on, like having, for example, [a] heart attack. You have a disease process that is slowly progressive in causing changes in the vessel walls[.]" Dr. Eslami further testified that he did not think that working with a punch press and lifting 15 pounds of metal, which was a routine that Cunningham was accustomed to, would have caused extremely high blood pressure: "I don't think that would have caused the extremely high blood pressure."
Dr. Gordon Kirschberg, the plaintiffs' expert witness on whose testimony the majority opinion relies, testified that the work might have been a factor. Dr. Kirschberg, in answer to the question whether physical activity, such as the work in this case, has a role in causing or initiating a stroke, stated: "That is something which nobody really knows.... [Y]ou can have elevated blood pressure causing or having some cause of influence on the possibility of stroke." Dr. Kirschberg testified: "[Y]ou give one last push to the blood pressure [and] it may cause some spasm or little clots to fall off and that may, in fact, be the cause of the stroke."
Not only is the "clear and convincing" standard of proof not met in this case, but the "preponderance of the evidence" standard is not met either. The treating doctor stated that the work had no relationship to the stroke, while Cunningham's expert witness gave weak testimony that barely supported Cunningham's claim.
It should be kept in mind that in nonaccident cases, expert testimony supporting a finding of causation is required. The plaintiff's expert said, "[N]obody really knows." In other words, his statements are only theory, not established medical facts. Further, the expert said "possibly" or "maybe" as to whether that theoretical view applied in Cunningham's case. Dr. Kirschberg testified: "Well, yeah, I want to be very clear about it so I'm not misquoted, but I don't think anybody has any proof that if you elevate your blood pressure there's a definite link between that and having a stroke...." This evidence *275 is not "clear and convincing." Neither does it meet a "preponderance of the evidence" standard.
One can argue that because of the nature of strokes a worker will never be able to prove that his or her employment caused the stroke. This argument may be true, especially when considered in light of the testimony provided by medical experts in this case. However, workers' compensation claims are governed by statute. If the statute has set the standard of proof too high for nonaccidental injuries, then it is the duty of the Legislature to alter the statute. It could be that the Legislature considered the medical fact that non-accident-related injuries, e.g., strokes, are normally caused by many factors over the course of a person's life. Medical experts themselves have not come to a firm opinion as to the cause of strokes. They can happen anytime, anywhere. How can we hold an employer liable for a disease caused by such an indeterminate and questionable source? It is possible the Alabama Legislature had this medical fact in mind when it amended the Workers' Compensation Act in 1992?
The majority opinion effectively eliminates the two-part test of Howard. Also, it has, for all practical purposes, repealed the standard of proof requirements that the Legislature established under § 25-5-81. The potential for recovery on invalid workers' compensation claims, based on the holding of the majority opinion, is unlimited. Now, virtually anyone who has a heart attack, a stroke, or any other nonaccidental injury while at work can recover under the Workers' Compensation Act. I would reverse the judgment of the Court of Civil Appeals.
MADDOX, Justice (dissenting).
The law concerning the burden of proof in workers' compensation cases involving heart attacks and strokes was set out by the Court of Civil Appeals over 20 years ago in City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So. 2d 729 (Ala.Civ.App.1975). The standard set out in Howard was later reaffirmed in Newman Brothers, Inc. v. McDowell, 354 So. 2d 1138 (Ala.Civ.App.1977). In Howard, the Court of Civil Appeals held that there were two standards of causation in workers' compensation claims involving heart attacks: legal causation and medical causation. The employee must present evidence as to both aspects of causation or else he or she has failed to meet the burden of proof.
I agree with the Chief Justice's interpretation of the medical causation test set out in Howard, as he explains it in his dissenting opinion. It appears to me that Howard requires the allegedly harming exposure at work to be "the contributing cause of the injury" upon which the workers' compensation claim is based, not just "a contributing cause." The significance of this difference is that the exposure caused by the employment must be more than one of many different factors causing a compensable injury; it must be the final or the main cause resulting in the "nonaccidental" injury.[8]
Section 25-5-81(c), Ala.Code 1975, states that "injuries which have resulted from gradual deterioration or cumulative physical stress disorders" will be "compensable only upon a finding of clear and convincing proof." The injury involved here is a stroke. Thus, the question before the Court, based on the record, is whether a stroke is an injury of sudden onset or an injury resulting from a "gradual deterioration." If it is the latter, the statute states that the injury will be "compensable only upon a finding of clear and convincing proof."
The Legislature did not elect to state what it meant when it used the phrase "injuries which have resulted from gradual deterioration," but this phrase presents a medical question. In Howard, the Court of Civil Appeals said the following:
55 Ala.App. at 705-06, 318 So. 2d at 732 (emphasis added). Applying the Howard test to the facts of this case, I am unable to find legal evidence to meet either the legal test or the medical test of causation. Stated differently, the record reflects no direct evidence as to whether the stroke was a result of a gradual deterioration or was a sudden onset. Consequently, I cannot agree that the injury is compensable.
[1] The testimony shows that Cunningham handled 3 pieces of metal per minute, or 180 pieces per hour, in this manner. Therefore, the evidence would suggest that Cunningham had handled approximately 765 pieces of metal in this matter on the morning he suffered the stroke.
[2] In Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 183, 82 So. 2d 204, 207 (1955), this Court stated:
"[T]he injury must be caused by an accident [1] arising out of and [2] in the course of employment to be compensable. Hardisty v. Woodward Iron Co., 214 Ala. 256, 107 So. 837; [(1926)] Jones v. SlossSheffield Steel & Iron Co., 221 Ala. 547, 130 So. 74. [(1930)] For an accident to `arise out of employment' the employment must have been the cause and source of the accident and the resultant injuries must be traceable to a proximate cause set in motion by the employment, not by some other agency. Foster v. Continental Gin Co., 261 Ala. 366, 74 So. 2d 474. [(1954)] And an injury to an employee `arises in [the] course of employment' within the compensation act when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incident to it. Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So. 2d 666. [(1947)]"
[3] An employee claiming to have been injured by a sudden and traumatic external event (an "accident" in the colloquial sense, e.g., being struck by a falling hammer on a construction site or slipping off a ladder) need only produce substantial evidence tending to show that the alleged "accident" occurred and tending to establish "medical causation," by demonstrating that the "accident" was a contributing cause of the complained-of injuries and complications.
[4] Arthur Larson, in his workers' compensation treatise, advocates the use of a two-part causation test. 1A Larson, The Law of Workmen's Compensation, § 38.83(a) (1995 & Nov. 1995 Supp.). Larson cites cases from many states adopting two-part causation tests similar to the test enunciated in Howard by the Court of Civil Appeals. See, e.g., DeSchaaf v. Industrial Comm'n, 141 Ariz. 318, 686 P.2d 1288 (Ariz.Ct. App.1984); McCall v. Dick Burns, Inc., 408 So. 2d 787 (Fla.Dist.Ct.App. 1982); Bryant v. Masters Mach. Co., 444 A.2d 329 (Me. 1982); Courtney v. City of Orono, 463 N.W.2d 514 (Minn. 1990); Leitz v. Roberts Dairy, 237 Neb. 235, 465 N.W.2d 601 (1991); Coday v. Willamette Tug & Barge Co., 250 Or. 39, 440 P.2d 224 (1968); Allen v. Industrial Comm'n, 729 P.2d 15 (Utah 1986); Pitsch v. Dep't of Indus., Labor & Human Relations, 47 Wis.2d 55, 176 N.W.2d 390 (1970).
[5] The standard enunciated in Pow was originally created to apply in cases of exposure to the elements (e.g., temperature and humidity). See, e.g., Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565 (1934) (heat exhaustion); Pow v. Southern Constr. Co., 235 Ala. 580, 180 So. 288 (1938) (exposure to extremely damp conditions); Pullman-Standard Car Mfg. Co. v. Lively, 239 Ala. 684, 196 So. 870 (1940) (heat exhaustion). Those early cases posed very troubling analytical problems for courts attempting to apply relatively new workers' compensation schemes, because all persons, whether at work or at home, are constantly exposed to the elements. This Court, following cases from other jurisdictions, required that a claimant prove "excessive exposure" to the elements, meaning that a claimant must prove that he or she was exposed to some danger in excess of what he or she would have been exposed to if not at work (e.g., extremely cold or extremely hot temperature or high humidity) in order to recover for exposureto-the-elements injuries. Pow, 235 Ala. at 584, 180 So. at 291. The Howard court realized that exposure-to-the-elements cases need not be treated under a standard analytically different from the standard applied in other "nonaccidental" injury cases, because all "nonaccidental" injury causation standards, including the Pow standard, are designed to determine whether there has been an exposure to risk in excess of the baseline exposure to risk that we all face daily in merely living.
[6] This Court has applied the Howard two-part causation standard approvingly and without question since its inception. See, e.g., Ex parte Price, 555 So. 2d 1060 (Ala.1989); Ex parte Moncrief, 627 So. 2d 385 (Ala.1993).
[7] The Michigan Supreme Court in Kostamo v. Marquette Iron Co., 405 Mich. 105, 274 N.W.2d 411 (1979), addressed the problem of establishing medical causation in cases where the complained-of injury or disease arises from a number of contributing factors. Although the court in Kostamo was faced with the task of determining whether the plaintiff had submitted adequate evidence of causation in order to establish a causal link, for workers' compensation purposes, between the plaintiff's work and the heart attack he suffered, the reasoning of that case applies equally as well to cases involving strokes alleged to have been work-related. The Michigan Supreme Court stated:
"Medical testimony in the context of compensation proceedings for cardiac injuries often encounters special difficulties. Cross-pollination of medical and legal concepts of causality can confuse the ultimate issue and obscure the function of the fact finder.
"Doctors and lawyers approach the problem of cause from different perspectives. It has been said: `Medically, "the cause" may be considered that activity or agent without which a condition would not have appeared. From the legal point of view, if some factor or element plays a role in bringing about a result sooner than ordinarily would be expected, it may be considered "a" cause for which legal liability may accrue.'
"The medical assessment of causality in heart cases is complicated by the many factors involved in the causation and progression of an individual's cardiac disorder.
". . . .
"Dr. English, Kostamo's medical expert, stated that Kostamo's work `could have,' `might have,' `possibly' precipitated or aggravated Kostamo's heart attack.
". . . .
"Dr. English's failure to state a medical opinion with certainty reflects the current status of scientific knowledge, not a lack of merit in the claimant's position. `The matter does not turn on the use of a particular form of words by the physicians in giving their testimony.' Sentilles [v. Inter-Caribbean Shipping Corp., 361 U.S. 107 [80 S. Ct. 173, 4 L. Ed. 2d 142] (1959)]. The law does not place on claimants the impossible burden of proving with certainty that work-related stress contributed to their cardiac disorder."
(Emphasis added.)
[*] Although Justice Shores was not present when this case was orally argued, she listened to the tape of that oral argument on March 4, 1996.
[8] Perhaps the best way to describe this test is to use the cliché of "the straw that broke the camel's back." The medical causation test as set forth in Howard require that the allegedly harmful work-related exposure must be "the final straw" resulting in the nonaccidental injury, not just one of the many straws or factors that caused the nonaccidental injury. | May 3, 1996 |
88a86883-3d24-4031-9fba-3a0a539048f6 | McCann v. Lee | 679 So. 2d 658 | 1940991, 1941102 | Alabama | Alabama Supreme Court | 679 So. 2d 658 (1996)
Martin P. McCANN, M.D.
v.
Frances Louise LEE, individually and as executrix of the Estate of Woodrow Wilson Lee, deceased.
Frances Louise LEE, as executrix of the Estate of Woodrow Wilson Lee, deceased
v.
Martin P. McCANN, M.D.
1940991, 1941102.
Supreme Court of Alabama.
May 31, 1996.
Rehearing Denied July 19, 1996.
Thomas H. Keene, Ronald G. Davenport and William H. Webster of Rushton, Stakely, Johnston, & Garrett, P.A., Montgomery, for Dr. McCann.
Sam E. Loftin and W. Banks Herndon of Loftin, Herndon & Loftin, Phenix City, for Ms. Lee.
*659 INGRAM, Justice.
Woodrow Wilson Lee sued Dr. Martin P. McCann, a pathologist, alleging that Dr. McCann had negligently diagnosed him with cancer; his wife, Frances Louise Lee, sued Dr. McCann for damages for loss of consortium. Mr. Lee died before trial, and Mrs. Lee, as executrix of her husband's estate, was substituted as plaintiff as to the claim Mr. Lee had filed. The complaint was amended to allege also that Dr. McCann had wrongfully caused the death of Mr. Lee. All three claims against Dr. McCann went to trial. The jury awarded the plaintiff $1,000,000 in compensatory damages on the negligent diagnosis claim and $1,000,000 in compensatory damages on the loss of consortium claim. The jury returned a verdict in favor of Dr. McCann on the wrongful death claim.
Dr. McCann moved for a judgment notwithstanding the verdict, a new trial, or a remittitur of the damages, contending that the damages awarded were excessive. The trial court agreed in part and conditioned its denial of Dr. McCann's motion for a new trial upon Mrs. Lee's acceptance of a $750,000 remittitur of the compensatory damages award on the loss of consortium claim, reducing that award to $250,000. Mrs. Lee accepted the remittitur on the condition that Dr. McCann not appeal; however, Dr. McCann did appeal. Mrs. Lee then cross appealed from the order requiring a remittitur.
A jury's verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Crown Life Ins. Co. v. Smith, 657 So. 2d 821 (Ala.1994); Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala.1988). In addition, a judgment based upon a jury verdict and sustained by the denial of a postjudgment motion for a new trial will not be reversed unless it is plainly and palpably wrong. Ashbee v. Brock, 510 So. 2d 214 (Ala. 1987). Because the jury returned a verdict for the plaintiff, any disputed questions of fact must be resolved in her favor, and we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict. State Farm Auto. Ins. Co. v. Morris, 612 So. 2d 440, 443 (Ala.1993). In short, in reviewing a judgment based upon a jury verdict, this Court must review the record in a light most favorable to the appellee. Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208, 1211 (Ala.1990).
In May 1991, Woodrow Lee, a 78-year-old man, was admitted to Phenix Medical Park Hospital with pneumonia. While there, he experienced some rectal bleeding. His physician called in Dr. Howard Weldon, a surgeon, to determine the cause of the bleeding. Dr. Weldon performed a rectal examination, and during that exam he felt a "questionable mass" inside Mr. Lee's rectum. While performing a colonoscopic examination, Dr. Weldon observed a "cauliflower-appearing" mass on the wall of the rectum. Dr. Weldon suspected cancer and took biopsies of the mass. On May 31, 1991, the biopsy material was submitted to Dr. McCann, the pathologist working at the hospital. After examining the tissue specimen submitted, Dr. McCann issued a report with a diagnosis of "mucin producing adenocarcinoma, biopsies of rectum." Specifically, Dr. McCann's diagnosis was that Mr. Lee had a malignant tumor in his rectum. On that same date, Dr. McCann left for a vacation. Based upon the report issued by Dr. McCann, Dr. Weldon told Mr. Lee that he had cancer and needed surgery. Dr. Weldon explained to Mr. Lee that this surgery would require the complete removal of his rectum, that he would no longer have any rectal function, and that he would have to defecate into a bag through a colostomy. Dr. Weldon explained the possible side effects of the surgery, including impotence and sexual dysfunction. Dr. Weldon performed the surgery on June 3, 1991. Dr. Weldon sent the tissue that was removed to the pathology department for further examination. Dr. R.C. Hamill, filling in for Dr. McCann, examined the specimens. However, he did not issue a pathology report. Dr. Weldon contacted Dr. Hamill to determine why he had not received a pathology report. Dr. Hamill explained that he was unable to find any cancer and wanted to wait for Dr. McCann to return from vacation before releasing a final report. After Dr. McCann returned, he also examined the tissue and found no evidence of cancer. Dr. McCann's *660 final diagnosis was an "atypical mucus hyperplasia." According to Dr. Weldon, had he known that there was no cancer, he would not have performed such radical surgery, but would have excised only the area of the mass, not the entire rectum.
On appeal, Dr. McCann contends that the jury's award of $1,000,000 in compensatory damages on the negligence claim and the compensatory damages award on the loss of consortium claim, even after it was remitted to $250,000, are excessive.
Dr. McCann argues that because compensatory damages are intended only to reimburse the plaintiff, the evidence in this case does not support the awards, because (1) there was no evidence of any medical bills, out-of-pocket expenses, lost earnings, or loss of earning capacity resulting from the alleged negligence; and (2) Mr. Lee lived only about eight months after the surgery, dying then of unrelated causes; Dr. McCann says that any pain, depression, or embarrassment Mr. Lee suffered was therefore insufficient to substantiate such an award.
The plaintiff claimed damages for Mr. Lee's mental anguish and emotional distress. We recognize that those are not items for which a precise amount of damages can be assessed. In considering whether a jury verdict awarding compensatory damages is excessive, we must view the evidence from the injured party's perspective and determine what the evidence supports in terms of the injured party's suffering. Foster v. Life Ins. Co. of Georgia, 656 So. 2d 333 (Ala.1994). In this case, evidence was presented regarding Mr. Lee's mental anguish and emotional distress. There was testimony that before the surgery the Lees had led an active life and Mr. Lee had been in good health for a man his age. After the surgery, he became depressed because of the need for the colostomy bag. His doctor prescribed anti-depressant medication to help alleviate his depression. Mr. Lee rarely left his home after the surgery because the colostomy bag on occasions came loose, smelled bad, and made noises caused by gas being emitted from the opening of the bag. After the surgery, Mr. Lee was impotent. Evidence indicated that Mr. Lee's mental anguish and emotional distress over the unnecessary surgery continued until his death approximately eight months later.
This Court has noted:
Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812, 820 (Ala.1988), quoting W.S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 603, 165 So. 2d 375 (1963).
We hold that the trial court did not abuse its discretion in refusing to order a remittitur of the $1,000,000 compensatory damages award on the negligent-diagnosis claim and that it did not abuse its discretion in ordering a remittitur of $750,000 on the $1,000,000 award for loss of consortium, reducing that award to $250,000. The evidence indicated that Mr. Lee suffered severe mental anguish and depression, and that evidence was sufficient to support the jury's award on the negligent-diagnosis claim. While we cannot say that the trial court abused its discretion in not ordering a remittitur of that award, we agree with the trial court that the damages award for the loss of consortium claim was excessive. Mrs. Lee's evidence of mental anguish resulting from the loss of consortium was not sufficient to support a compensatory damages award equal to the award on the negligent-diagnosis claim. Therefore, the trial court properly ordered the remittitur.
The judgment is affirmed.
1940991AFFIRMED.
1941102AFFIRMED.
MADDOX, ALMON, KENNEDY, and BUTTS, JJ., concur.
HOUSTON, J., concurs specially.
HOOPER, C.J., dissents.
*661 HOUSTON, Justice (concurring specially).
In Duck Head Apparel Co. v. Hoots, 659 So. 2d 897, 906-08 (Ala.1995), this Court upheld awards of $2,000,000; $1,000,000; and $500,000 for mental anguish to three men in a business fraud case. When compared to the mental anguish in Duck Head, I cannot hold that Mr. Lee's mental anguish that resulted from the unnecessary removal of his rectum resulting in the loss of rectal function and impotency and sexual dysfunction for the last eight months of his life is excessive.
HOOPER, Chief Justice (dissenting).
I must respectfully dissent.
The jury found that Dr. McCann had acted negligently, not that he intentionally or willfully caused the injury, and it awarded $2,000,000 in compensatory damages: $1,000,000 in compensatory damages to Mr. Lee's estate, and $1,000,000 to Ms. Lee for loss of consortium. The trial judge ordered a remittitur of the loss of consortium award to $250,000. There were no punitive damages awarded in this case; the damages of $2,000,000, reduced to $1,250,000, were intended solely to "compensate" Ms. Lee and to compensate Mr. Lee's estate for the loss or injury Mr. Lee suffered during the eight months he lived after the negligent surgery.
No evidence was produced regarding medical bills, out-of-pocket expenses, lost earnings, or loss of earning capacity, and no evidence indicated a wrongful death. However, evidence was produced to indicate that after the surgery Mr. Lee gained weight, appeared stronger, worked in his yard, and did not find it necessary to wear his colostomy belt. Mr. Lee had been retired for some years, and after the surgery he was not precluded from working or otherwise earning wages. Mr. Lee became sick on his 79th birthday and never recovered. He died from unrelated causes 8 months after the surgery.
It is clear that Dr. McCann was negligent. It is also clear that Mr. Lee lost the lower portion of his colon as a result of Dr. McCann's negligence. However, the jury awarded the plaintiff $1,000,000 for her husband's few days of pain and eight months of depression and embarrassment.
The jury demonstrated an inability to properly judge the law and the facts when it awarded Ms. Lee $1,000,000 for loss of consortium. This award was entirely intended to compensate Ms. Lee for the eight months of lost consortiumthe loss of conjugal fellowship, company, society, co-operation, affection, and aid in every conjugal relation.
I do not discount this statement by the majority:
679 So. 2d at 660 (quoting W.S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 603, 165 So. 2d 375 (1963)).
While this Court does not have "a yardstick" by which to measure compensatory damages for pain and mental suffering, we do have common sense and the common law. Assume that the jury had said that Ms. Lee was entitled to $100 million for pain and suffering in this case. Would this Court say: "[T]here is no yardstick by which compensatory damages for pain and mental suffering can be measured; therefore, we will not disturb the jury's judgment?" I sincerely hope not. Instead, the majority would probably look a little more closely at the second clause of the Skipper test: "[The jury's verdict is] subject only to correction by the court for clear abuse or passionate exercise." How would this Court determine whether the jury has committed "a clear abuse or passionate exercise?" I submit that this Court would consider the common law and common sense.
If the Skipper test is good enough to be quoted for the "no yardstick" proposition, then this Court should also use that case as precedent in deciding whether the compensatory damages for pain and mental suffering are proper in this case. In Skipper, the plaintiff sued for damages for personal injuries he sustained when a pickup truck in which he was riding collided with the boom of *662 a dragline crane that had been left across an open ditch on a highway that was under construction by the defendant.
The plaintiff in Skipper lost substantial use of his right hand for the rest of his life, and he could no longer work in his trade, which required the use of his right hand. Moreover, the plaintiff was in a hospital for nine days and was unable to do any sort of work for six months. In addition, he incurred hospital and doctors' bills, and, finally, he sustained painful injury not only to his hand but over the rest of his body.
In light of all that evidence in Skipper, this Court held that an award of $10,000 was proper to compensate the plaintiff for his medical expenses, future lost wages, permanent partial loss of use of his right hand, and pain and mental suffering. This Court does not have a "yardstick," but we do have precedent.
I realize that the jury verdict in Skipper was returned in 1961, when $10,000 was worth more than it was in 1994, when the jury in our case made its award against Dr. McCann. However, the 1994 value of $10,000 in 1961 dollars is still not close to the value of $1,000,000 in 1994 dollars. Moreover, the $10,000 award in Skipper, unlike the award in today's case, was not only intended as compensation for pain and mental suffering, but also as compensation for Skipper's medical expenses, future lost wages, and permanent partial loss of use of his right hand. Therefore, the compensation awarded for pain and suffering in Skipper was less than $10,000, even in 1961 dollars.
Skipper shows how far this Court has gone in 30 years. Relatively mild pain and suffering used to be worth less than $10,000, and now it is worth $1,000,000. Has the quality of life increased exponentially in the last 30 years to the extent that pain and suffering that used to be worth less than $10,000 is now worth $1,000,000? The discrepancy in awards cannot be explained by the assertion that the injury or harm was different. All items of injury or harm are as different as the specific facts of each case; however, that should not prevent this Court from using precedent and common law to determine the reasonableness of awards to compensate for them. It is true that this Court does not have a yardstick with which to measure pain and mental suffering, but it is our duty as Justices to adhere to the common law and to use our common sense to step in when juries commit "clear abuse or passionate exercise."
I have a great deal of sympathy for the suffering the Lees went through during Mr. Lee's last eight months. It seems to me that the natural human reaction to this type of medical problem is an emotional revulsion. However, the suffering the Lees endured was limited to eight months. I believe that the jury engaged in "passionate exercise" when it awarded $1,000,000 for Mr. Lee's suffering and $1,000,000 for Ms. Lee's loss of consortium. I believe that the $1,000,000 award to the estate is too high, and that the award for loss of consortium, even after the remittitur, is still too high.
The majority of this Court, in adhering to the principle that "[t]here is no yardstick by which compensatory damages for pain and mental suffering can be measured," has abandoned its duty to follow precedent and to use its common sense to prevent a jury from committing "clear abuse or passionate exercise." Therefore, I must dissent. | May 31, 1996 |
ecd373a1-721c-49fd-8f99-f035d0bdffc6 | AmSouth Bank, NA v. J & D FINANCIAL | 679 So. 2d 695 | 1931140 | Alabama | Alabama Supreme Court | 679 So. 2d 695 (1996)
AMSOUTH BANK, N.A.
v.
J & D FINANCIAL CORPORATION.
1931140.
Supreme Court of Alabama.
June 28, 1996.
Rehearing Denied August 30, 1996.
*696 Eric J. Breithaupt of Feibelman, Shulman & Terry, Mobile, for Appellant.
Peter S. Mackey of Burns, Cunningham & Mackey, Mobile, for Appellee.
PER CURIAM.
AmSouth Bank appeals from a summary judgment in favor of J & D Financial Corporation holding that J & D Financial is entitled to $77,341.43 in accounts receivable from Lori & Me, a division of Sweet Bonnie Sue, Inc., and holding that J & D is entitled to $1,758.00, collected by AmSouth from creditors of Lori & Me. The following stipulation of facts was submitted to the trial judge, who, before entering the summary judgment, heard oral argument and considered memorandums of law submitted by both parties:
It is undisputed that, without the subordination agreement between AmSouth and J & D, the lienholders would be ranked in priority as follows: (1) Presidential; (2) AmSouth; and (3) J & D. There is also no dispute that the central issue in this appeal is the effect of the subordination agreement between Presidential and J & D on AmSouth's priority status. The agreement between Presidential and J & D stated:
The trial court held that the subordination agreement resulted in a change in priority among lienholders, establishing the following order: (1) J & D; (2) AmSouth and (3) Presidential. In addressing the effect the subordination agreement between J & D and Presidential had on AmSouth, the trial court relied on I.T.T. Diversified Credit v. First City Capital Corp., 737 S.W.2d 803 (Tex. 1987). The fact situation in that case was virtually identical to the situation before us today. In fact, in ITT the trial court and the intermediate court reached the result AmSouth urges this Court to reach in this case, that is, the following rank in priority: (1) AmSouth; (2) J & D, and (3) Presidential. As AmSouth urges us to do here, the trial judge in ITT held that the second priority lienholder (here AmSouth) moved into first position and that the first priority lienholder (here Presidential), in subordinating its interests to the third priority lienholder (here J & D), merely moved behind the third priority lienholder with the other lienholders shifting upward by 1. The Texas Court of Appeals affirmed the trial court's decision, holding *698 that the first priority lienholder "could have transferred its interest to any inferior lienholder," ITT Diversified Credit Corp. v. First City Capital Corp., 717 S.W.2d 419, 421 (Tex. App.1986), but did not, for whatever reason, do so. The Texas Court of Appeals, in making its ruling, relied on this Court's case of Shaddix v. National Surety Co., 221 Ala. 268, 128 So. 220 (1930), as authority for its decision:
ITT Diversified Credit v. First City Capital Corp., 717 S.W.2d 419, 421 (Tex.App.1986). Although the Texas Supreme Court reversed the ruling of the Court of Appeals, we hold the language of the Texas Court of Appeals opinion and the reliance on Shaddix therein to be a more compelling argument under the facts of this case. In so holding, we find the result reached by relying in Shaddix to be consistent with the definition of "subordination agreement":
Black's Law Dictionary (6th ed.1990). By definition, "subordination" contemplates a reduction in priority. Nothing in the definition contemplates raising a lower priority lienholder up to the position of the subordinating party.[4]
The judgment is reversed and the case is remanded, on the authority of Shaddix v. National Surety Co., 221 Ala. 268, 128 So. 220 (1930).
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, INGRAM, and BUTTS, JJ., concur.
COOK, J., dissents.
COOK, Justice (dissenting).
I respectfully dissent. I would affirm the judgment of the trial court; I adopt the following reasoning of the Texas Supreme Court in ITT Diversified Credit v. First City Capital Corp., 737 S.W.2d 803 (Tex.1987):
737 S.W.2d at 804. Under the facts of this case, AmSouth has neither benefited from, nor been adversely affected by, Presidential's allowing J & D to move into first priority only to the extent of the amount of Presidential's lien. Had there been no agreement between Presidential and J & D, AmSouth would not have been entitled to the funds it now claims. Without question, those funds would have gone to Presidential. The obvious intent of the agreement between Presidential and J & D, in my opinion, was to allow J & D to move into first priority to the extent of Presidential's claim; therefore, I would follow Professor Gilmore's approach as it was stated in the ITT case, quoted above. For the foregoing reasons, I respectfully dissent.
[1] According to the appellant, a factoring agreement "is a credit facility where the factor buys the accounts receivable of the customer at a discount, and then makes a profit by collecting the full amount of the receivable directly from the customer's account debtor. This allows the customer to obtain immediate cash flow rather than waiting for the receivables to be paid. Both Presidential and J & D were factors."
[2] The collateral listed on both UCC-1 forms is virtually identical; however, the UCC-1 based on the transaction between SBS and AmSouth shows the debtor as "Sweet Bonnie Sue, Inc.," while the UCC-1 based on the the transaction between SBS and J & D shows the debtor as "Sweet Bonnie Sue, Inc. T/A Lori and Me." "Lori and Me" is a division of SBS.
[3] In its brief on appeal, the appellee accepted the "stipulated facts" as an adequate statement of the facts, but added the following: "Additionally, J & D would show ... that Presidential Financial Corporation obtained a judgment against [SBS] on October 8, 1992, in the amount of $80,694.65..., no part of which has been paid."
[4] We note that there was no assignment or subrogation agreement in this case. Had there been, the resulting order of priority would have been different. | June 28, 1996 |
e56a0b18-3eab-46bf-9f87-0ccebd30eaac | Life Ins. Co. of Georgia v. Johnson | 684 So. 2d 685 | 1940357 | Alabama | Alabama Supreme Court | 684 So. 2d 685 (1996)
LIFE INSURANCE COMPANY OF GEORGIA
v.
Daisey L. JOHNSON.
1940357.
Supreme Court of Alabama.
April 26, 1996.[*]
*686 Davis Carr and James W. Lampkin II of Pierce, Carr, Alford, Ledyard & Latta, P.C., Mobile, Theodore B. Olson and Theodore J. Boutrous, Jr. of Gibson, Dunn & Crutcher, Washington, DC, for Appellant.
Sidney W. Jackson III and Robert J. Hedge of Jackson, Taylor & Martino, P.C., Mobile, Wyman O. Gilmore, Jr. of Gilmore & Gilmore, Grove Hill, for Appellee.
J. Fred Wood, Jr. and Terry McElheny of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for Amicus Curiae Amerex Corp.
T. Thomas Cottingham, F.A. Flowers III and Eric D. Franz of Burr & Forman, Birmingham, for Amicus Curiae USX Corp.
Bert S. Nettles, Mark D. Hess and Laura E. Proctor of London & Yancey, Birmingham, for Amicus Curiae Blue Cross-Blue Shield of Alabama.
*687 Larry W. Harper and W. Perry Webb of Porterfield, Harper & Mills, P.A., Birmingham, for Amicus Curiae Wausau Ins. Co.
Harry Cole and Terry A. Sides of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, and Ken Wallis, Gordon T. Carter and H. Al Scott of Alfa Mutual Ins. Co., Montgomery, for Amici Curiae Alfa Mutual Ins. Co., Alfa Mutual Fire Ins. Co., Alfa Mutual General Ins. Co. and Alfa Life Ins. Corp.
Joseph B. Mays, Jr., Phillip J. Carroll III and Gregory B. Wormuth of Bradley, Arant, Rose & White, Birmingham, for Amicus Curiae Alabama Gas Corp.
J. Mark Hart of Olschner & Hart, P.C., Birmingham, and Ollie L. Blan, Jr. of Spain & Gillon, Birmingham, for Amicus Curiae Alabama Defense Lawyers Ass'n.
Jack Drake of Drake & Pierce, Tuscaloosa, for Amicus Curiae Alabama Trial Lawyers Ass'n.
Frederick T. Kuykendall III and Sam Heldman of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, David Shelby of Shelby & Cartee, Birmingham, J. Cecil Gardner of Gardner, Middlebrooks & Fleming, Mobile, and David Denny of Baron & Budd, P.C., Dallas, Texas, for Amicus Curiae Mary Lambreth.
Robert D. Norman of Norman, Fitzpatrick, Wood & Kendrick, Birmingham, for Amicus Curiae University of Alabama Health Services Foundation, P.C.
C.C. Torbert, Jr. of Maynard, Cooper & Gale, P.C., Montgomery, Andrew L. Frey and Evan M. Tager of Mayer, Brown & Platt, Washington, DC, for Amici Curiae the Chamber of Commerce of the United States and the Product Liability Advisory Council, Inc.
Jeff Sessions, Atty. Gen., and William H. Pryor, Jr., Deputy Atty. Gen., for Amicus Curiae the State of Alabama.
SHORES, Justice.
The opinion released November 17, 1995, is withdrawn and the following is substituted therefor. The Court wishes to express its appreciation to counsel for the parties and to counsel for amici curiae for the excellent briefs filed in support of the applications for rehearing. The Court has been aided and persuaded by the excellent and well-reasoned arguments advanced by both the parties and the amici curiae.
Daisey L. Johnson sued Life Insurance Company of Georgia ("Life of Georgia"), alleging that it had engaged in intentional and reckless fraud and fraudulent suppression by selling her a Medicare supplement insurance policy that was worthless to her because she was eligible for Medicaid. The jury returned a verdict in favor of Ms. Johnson, assessing compensatory damages at $250,000 and punitive damages at $15 million. Life of Georgia moved for a new trial or for a remittitur of damages. The trial judge held a hearing pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989). Following the hearing, the trial judge reduced the punitive damages award to $12.5 million, pursuant to Ala.Code 1975, § 6-11-21, and this remittitur was accepted by the plaintiff. Life of Georgia appeals.
Ms. Johnson, a resident of Grove Hill, Alabama, is an 84-year-old woman who went through the third grade in school and who spent her life as a domestic worker. Because Ms. Johnson had dealt with Life of Georgia for over 25 years, paying premiums on nine different policies, she trusted its agents. Sometime before January 8, 1990, a Life of Georgia agent, Barbara Holt, came to Ms. Johnson's home to collect the monthly premiums on her existing policies. Ms. Holt recommended that Ms. Johnson purchase a Medicare supplement policy. The next week Ms. Holt returned and again discussed the Medicare supplement policy with Ms. Johnson, who agreed to purchase the policy. Ms. Johnson testified that Ms. Holt told her that the Medicare supplement policy would protect her. She testified: "If I got in the hospital, you wouldn't have to worry about your doctor bill, you could stay in there because they would pay your doctor bill, and I got it." Ms. Holt filled out the application for Ms. Johnson.
*688 At first, Barbara Holt testified that she asked Ms. Johnson for her Social Security card; later, she testified that she asked Ms. Johnson for her Medicaid card and that she asked the questions on the application, one of which was whether Ms. Johnson was on Medicaid. At trial, Ms. Johnson disputed Ms. Holt's testimony that she was asked whether she was on Medicaid. Ms. Johnson showed the jury how she gave her cards to Ms. Holt, by pulling a vinyl holder out of her purse. She testified that she always kept her cards in this vinyl holder, which contained her Medicaid, Medicare, and Social Security cards.
Despite the fact that Ms. Holt knew that it was illegal and against company policy to sell a Medicare supplement policy to Ms. Johnson, because she was on Medicaid, Ms. Holt completed the application and collected the premiums on the policy. Initially the premiums were $71 per month; by 1992, they had risen to $103almost one-third of Ms. Johnson's fixed income. Over almost a three-year period from 1990 through 1992, Ms. Johnson paid a total of $3,132 in premiums on this policy.
Life of Georgia first argues that it was entitled to a directed verdict or to a judgment notwithstanding the verdict, with respect to the award of punitive damages because, it argues, the plaintiff failed to prove by clear and convincing evidence that the company "consciously or deliberately engaged in oppression, fraud, wantonness, or malice" as is required by § 6-11-20, Ala. Code 1975, for the award of punitive damages. The statute provides:
The standard of review applicable to a directed verdict or to a denial of a motion for a directed verdict is whether the nonmoving party presented substantial evidence in support of his or her position. If not, then a directed verdict is proper. Bailey v. Avera, 560 So. 2d 1038, 1039 (Ala.1990). A verdict is properly directed only where there is a complete absence of proof on a material issue or where there are no disputed questions of fact for the jury to determine. Woodruff v. Johnson, 560 So. 2d 1040, 1041 (Ala.1990); K.S. v. Carr, 618 So. 2d 707, *689 713 (Ala.1993). Life of Georgia argues strenuously that the evidence was not sufficient to meet this clear and convincing standard; however, it admits that the evidence was in sharp conflict.
The trial judge denied Life of Georgia's motion for a directed verdict because he was satisfied that the plaintiff had presented a jury question with regard to the issue of punitive damages. He stated in his Hammond order:
The trial judge then instructed the jury that, pursuant to § 6-1-20, it must be satisfied by "clear and convincing evidence" of the plaintiff's allegations before it could return a punitive damages award. In the Hammond order, the trial judge recited the proof presented by the plaintiff as to her dealings with agent Barbara Holt in regard to the Medicare supplement policy:
When the evidence meets the "sufficiency" test, jury verdicts are presumed correct, and this presumption is strengthened by the trial court's denial of a motion for new trial. Therefore, a judgment based *690 upon a jury verdict and sustained by the denial of a post-judgment motion for a new trial will not be reversed on the ground that it is against the weight of the evidence, unless it is plainly and palpably wrong. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala.1988); Ashbee v. Brock, 510 So. 2d 214 (Ala.1987); Jawad v. Granade, 497 So. 2d 471 (Ala.1986). Having carefully studied the lengthy record, we conclude that there was substantial evidence before the jury to support the plaintiff's claim.
Life of Georgia next contends that the trial court erred in admitting what it calls "highly improper, prejudicial and inflammatory evidence" with respect to the plaintiff's claim that Life of Georgia was negligent and wanton in its training of its agents. The company contends that the only reason the plaintiff pursued the negligent and wanton training claim was to introduce evidence that would prejudice and bias the jury against the company. This argument disregards the Alabama statute on vicarious liability, § 6-11-27, Ala.Code 1975, and the strong proof required under this statute. The common law rule of vicarious liability is modified by § 6-11-27; this Code section requires a higher degree of proof of culpability on the part of the principal before punitive damages can be imposed against the principal for the conduct of its agent. Northwestern Mut. Life Ins. Co. v. Sheridan, 630 So. 2d 384, 390 (Ala. 1993). This Court noted this modification in Sheridan and commented: "Thus, as a logical matter, if plaintiffs can meet the statutory requirement for vicarious liability, they will, in many cases, also have established the elements of their claims for wantonness in the hiring and supervision of the agent." Id. The plaintiff's evidence relating to her claim that Life of Georgia negligently and wantonly trained its agents was directly related to her fraud claim. Because the plaintiff was required to prove a higher degree of culpability on the part of Life of Georgia to bind it for the acts of its agent, the trial court did not err in admitting this evidence. Id.
Next, Life of Georgia argues that it is entitled to a remittitur of the $250,000 compensatory award, on the grounds that the award grossly exceeds the plaintiff's "mental anguish" damages and her $3,132 out-of-pocket loss. Life of Georgia contends that the only evidence presented by the plaintiff concerning her mental state, upon learning that the insurance policy she had paid on for almost three years was worthless, was "that it made her angry" and that it "worried" her. The record reflects that this is not an accurate picture of her testimony. Ms. Johnson testified that after she learned that she had been paying the premiums on a worthless insurance policy, she could not sleep and her meal schedule was disrupted. Her testimony that she ran two insurance agents off her property, telling them "to leaveleave out of my yard and don't come back" is evidence from which the jury could conclude that Ms. Johnson was distressed to learn that she had been paying for a worthless policy and that she had suffered mental anguish as a result. The jury listened to her evidence and concluded that she had suffered emotionally as a result of the company's conduct. "[T]here [is no] yardstick to measure the amount of recompense which should be awarded for ... mental suffering." Birmingham Electric Co. v. Thompson, 251 Ala. 465, 466, 37 So. 2d 633, 634 (1948).
The trial judge also reviewed the evidence presented by the plaintiff concerning her claim for mental anguish. He concluded: "Ample evidence was presented at trial which supports the total compensatory damages award of $250,000 against Life of Georgia." This Court has said that the trial judge has much discretion in determining whether to grant a new trial and whether to require a remittitur of damages for mental anguish. Crown Life Ins. Co. v. Smith, 657 So. 2d 821 (Ala.1994); Fields v. Parker, 361 So. 2d 356 (Ala.1978). We find no abuse of discretion on his part in denying the motion for a new trial and in refusing to remit the award for compensatory damages, based upon the evidence before him. Pitt v. Century II, Inc., 631 So. 2d 235, 239 (Ala.1993).
Finally, we come to the question of the imposition of punitive damages. Life of Georgia, a tortfeasor that has been found by this jury to be guilty of conduct for which the law permits the imposition of punitive damages, argues that its rights have been unconstitutionally *691 impinged upon by the imposition of such damages. Over the years the constitutional arguments advanced in efforts to eliminate or to cap punitive damages awards have taken different forms. It has been argued that the "excessive fines" provisions of the State and Federal Constitutions forbid the imposition of punitive damages. Kumar v. Lewis, 561 So. 2d 1082 (Ala.1990); Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.1988); Alabama Power Co v. Turner, 575 So. 2d 551 (Ala. 1991), cert. denied, 500 U.S. 953, 111 S. Ct. 2260, 114 L. Ed. 2d 713 (1991). As it relates to the Eighth Amendment, this argument was rejected by the United States Supreme Court in Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989), and this argument now has largely been abandoned. See Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977). More recently, the due process provisions of the Fourteenth Amendment have been the basis of constitutional challenges where, as in this case, the defendant argues that the award of punitive damages is grossly excessive and fundamentally unfair and therefore contravenes Alabama law and the Due Process Clause of the Fourteenth Amendment. See Intercontinental Life Ins. Co. v. Lindblom, 571 So. 2d 1092 (Ala.1990) vacated. It is also frequently argued that, under Alabama law, juries are provided too few standards for determining a verdict appropriate both to punish the defendant, whose conduct inflicted harm upon the victim, and to deter others from engaging in similar conduct, without completely destroying the defendant financially. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823 (1986).
These arguments have been carefully considered by this Court. The standards set forth in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), were adopted partly in response to these concerns. These cases require the trial court, after the jury returns a verdict that the defendant claims to be excessive, to consider all relevant factors bearing on the issue of excessiveness when viewed from the perspective of the defendant. The factors set out in Hammond and Green Oil are not intended to be all-inclusive. Trial judges are encouraged to consider any evidence that has any relevance to the question of the fairness and justness of the jury verdict.
In this case, a jury found that Life of Georgia had defrauded an elderly Alabama citizen, and there was evidence that she was not the only Alabama victim of such fraud. The evidence established, and a jury has found, that the conduct of Life of Georgia justifies requiring it to pay a substantial sum of money as punitive damages. The trial judge has considered evidence offered in a post-verdict hearing pursuant to Hammond and Green Oil. After that hearing, the trial judge ordered a remittitur and explained his order, remitting the $15 million punitive damages award to $12.5 million, as follows:
The trial judge's order demonstrates that he focused on the conduct of Life of Georgia to determine whether the punishment was excessive in relationship to that conduct. The trial judge also considered the public policy upon which punitive damages are based: to eradicate intentional conduct by the particular defendant before the court and to deter others from similar conduct. The trial court remitted the award to an amount that it determined, from an examination of the facts specific to the defendant, was not excessive; the court determined that the reduced *693 award is not so large as to destroy the defendant, but is large enough to serve the public policy of punishment and deterrence.
Alabama citizens who become the victims of fraud have little recourse other than through litigation. The record in this case is replete with expert testimony to the effect that the State Insurance Department has little power to regulate agents, and we judicially know that litigation is often the only weapon defrauded citizens have. Punitive damages have historically been part of the remedy for such victims, and to get that remedy they must prove that the defendant intentionally inflicted the injury for which punishment is sought. As Jonathan Massey, writing recently in Trial magazine, explained, punitive damages have been used "to help equalize the playing field between the powerful and the powerlesswhether between king and subject, railroad and passenger, or corporation and consumer." "Why Tradition Supports Punitive Damages: and How the Defense Bar Misreads History," Trial, September 1995 P. 19. Massey continues:
Id. at pp. 24-27.
Attorneys who represent victims of fraud, such as the fraud practiced upon this plaintiff, usually bear all of the expense of the litigation and carry all of the risk of failure. They are reimbursed only if the victim recovers from the wrongdoer. The lawyer takes a significant risk in such cases. According to Business Week magazine,[1] plaintiffs today are losing a greater proportion of cases that go to trial than in past years; in 1988 plaintiffs won 63% of the cases that went to trial, but in 1992 plaintiffs won only 54%. This Business Week statistic is supported by a United States Justice Department Survey[2] of the country's 75 most populous counties, which concluded that in 1992 only 2% of the 762,000 civil cases disposed of in those counties were decided by juries, and that plaintiffs won in only 52% of those cases.[3]
American Bar Association statistics show that personal injury claims represent only 9% of the civil caseload in this country. Since 1986, personal injury cases have remained essentially flat on the scale, while *694 domestic relations matters have increased by 43%.[4]
There are also many cases that are concluded by the entry of a summary judgment for the defendant. Cases decided by summary judgments formed the largest category of civil cases decided by this Court in 1994, 47.6%. Eighty-three percent of those cases were affirmed by this Court, either in whole or in part. In those cases in which the plaintiff's lawyer works on a contingency fee basis, the lawyer loses the amount she or he has expended in filing the action and in preparing for trial.
Litigation is slow and costly and carries no guarantee of success. Victims of fraud bear the burden of proving to the satisfaction of a jury of 12 citizens that they have been victimized by the defendant. It is a heavy burden, and litigation is an inefficient way to stop fraudulent conductone lawsuit at a time, brought by one victim at a timebut it provides the only recourse a defrauded citizen of Alabama has.
The question whether setting standards for post-trial review of a jury's verdict is sufficient to provide due process, while allowing the jury discretion to determine punitive damages, has been much discussed. Under our present procedure, the jury, before rendering its verdict, never hears whether the amount it selects as the appropriate amount for punishing the defendant and deterring others from similar conduct is actually an appropriate amount, considering the factors that trial courts and appellate courts must consider in reviewing jury verdicts (i.e., the Hammond and Green Oil factors). In some cases, the plaintiff or defendant may offer evidence that the acts complained of resulted in profit to the defendant in a specific amount. In some cases the evidence might show how much or how little it would have cost the defendant to remedy a defect in a product or to change its method of doing business, but, in most cases, it could be argued that the jury has incomplete information from which to determine with certainty the amount that is appropriate to serve the ends for which punitive damages were intended. Under our present procedure, much evidence relevant to reaching a decision as to an appropriate amount to punish the particular defendant is withheld from the jury. To reach a verdict and to fix an amount of punitive damages, the jury may consider only the character of the defendant's conduct and the degree of wrong as shown by the evidence in the case. These strictures on the evidence that the jury may consider in awarding punitive damages result from concern that evidence of the defendant's wealth or the defendant's lack of wealth and other evidence that is relevant, if not critical, to the issue the jury is asked to decide must be excluded because such evidence could potentially influence the jury to the prejudice of one party or another. We have concluded, after much deliberation, that the need for more guidance for the jury in these cases outweighs the concern that such evidence might prejudice the jury. Juries are presumed to follow the law as instructed by the trial court. There is no reason to assume that the jury would disregard the trial court's instructions on this issue.
Separating the fact-finding process for adjudging liability and compensatory damages from the damages-assessment process in a punitive damages case and, at the same time, improving the reliability of the punitive damages-assessment process is a procedural goal that was recognized by Justice Jones in his special concurrence in Ridout's-Brown Service, Inc. v. Holloway, 397 So. 2d 125 (Ala. 1981), as adopted by this Court in Green Oil Co. v. Hornsby, supra. Justice Houston, concurring specially in Charter Hosp. of Mobile, Inc. v. Weinberg, 558 So. 2d 909 (Ala. 1990), expressed his opinion that constitutional due process provisions are violated when the jury is "given the unbridled discretion to award no punitive damages or to award an unlimited amount of punitive damages, taking into consideration only the character and the degree of the wrong as shown by the evidence in the case and the necessity of preventing similar wrongs in the *695 future." 558 So. 2d at 917. Justice Houston then set out a procedure providing for a bifurcated trial as a way to ensure due process:
"* A bifurcated trial is also recommended by the American College of Trial Lawyers, `Report on Punitive Damages of the Committee on Special Problems in the Administration of Justice' (March 3, 1989), pp. 18-19."
558 So. 2d at 917-18.
We hold that after the new procedures announced in this case become effective in all cases in which punitive damages are sought, excluding all actions based upon wrongful death, the trial shall be bifurcated in accordance with the procedure set out in Justice Houston's special concurrence in Charter Hospital of Mobile v. Weinberg, supra. The trial court shall charge the jury on the appropriate law, and the jury shall determine liability and the amount of compensatory damages, if any. The jury will also decide, by special verdict, whether the evidence justifies the imposition of punitive damages. In order to get an award of punitive damages, the plaintiff must prove a prima facie case of conduct supporting an award of punitive damages and the jury's decision to award punitive damages must be based upon clear and convincing evidence. If the jury returns the special verdict in the affirmative, the trial shall resume for the second part of the bifurcated trial.
In the second part, all evidence shall be admitted that is relevant to the question of what amount would be appropriate, to accomplish the purposes punitive damages were designed to serve, and it shall be admitted in accordance with § 6-11-23(b), Ala.Code 1975, which provides:
All evidence that has heretofore been admissible at post-verdict Hammond/Green Oil hearings can be introduced under this new procedure, before the jury retires to consider its punitive damages verdict.
The jury is to be guided not only by the factors set forth in Hammond and Green Oil, but also by those factors stated in the statute and in other case law. Davis Carr, writing in the Alabama Lawyer, has offered the following compilation of factors, drawn from both case law and statute, that can be considered:
We agree with the parties and amici curiae that the fact of the existence of liability insurance and the amount thereof cannot be disclosed to the jury. In addition, the discovery of financial information concerning the defendant will be limited to that which is relevant to the issue in the case. How much the defendant profited as a result of the tortious conduct would be relevant, as would, in many cases, how much it would have cost the defendant to avoid the tortious conduct. The net worth of the defendant may or may not be relevant, depending upon the nature of the case. In no event, however, is the defendant to be punished for its size or its success, only for its tortious conduct. This new procedure is intended to allow the jury to decide, based upon all the evidence that is relevant to that inquiry, the award that the specific defendant before the jury should be required to pay as punishment for the specific conduct justifying the punitive award.
The adoption of this bifurcated procedure is not a substitute for post-trial procedures for reviewing punitive damages awards. These awards, when challenged as excessive or inadequate, still must be considered through the procedures set out in Green Oil Co. v. Hornsby, supra, and Hammond v. City of Gadsden, supra. However, the evidence need not be readmitted in any post-verdict hearing on the question of excessiveness. Only such evidence as was not available for consideration by the jury that bears on the issue of excessiveness will be admitted in a post-verdict hearing on excessiveness. The trial courts must continue to review jury verdicts not only for excessiveness, but also to determine the validity of other challenges to jury verdicts. After this procedure is put in place, it can no longer be said that juries are left with no guidance in determining an appropriate punitive award.
Much of the criticism surrounding the issue of punitive damages has been based on the perception that punitive damages awards sometimes amount to undeserved windfalls to the prevailing plaintiffs. Chief Justice Rehnquist has suggested that the windfall effect could be avoided by requiring the losing defendant to pay the punitive award "to the *698 State, not to the plaintiffwho by hypothesis is fully compensated." Smith v. Wade, 461 U.S. 30, 59, 103 S. Ct. 1625, 1641, 75 L. Ed. 2d 632 (1983) (Rehnquist, C.J., dissenting). Such broad power to shape and effectuate remedies is deeply rooted in the common law system. Eisenberg and Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 Harv.L.Rev. 465 (1980); Chayes, The Role of the Judge in Public Law Litigation, 89 Harv.L.Rev. 1281 (1976).
Some states have passed statutes that allocate punitive damages and require that a portion of each punitive damages award be paid to the state general fund or some special fund that serves a public purpose. Fuller v. Preferred Risk Life Ins. Co., 577 So. 2d 878, 887 (Ala.1991). For example, Illinois[6] and Iowa[7] allocate punitive damages pursuant to statute. Florida[8] and Colorado[9] passed such statutes in 1987; these were both repealed, effective 1995.
A special concurrence in Preferred Risk, 577 So. 2d at 886, suggested that if a court concludes that the amount of punitive damages awarded is not so large as to deprive the defendant of property in contravention of § 13 of the Alabama Constitution of 1901 and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, then the court, nevertheless, may also determine that it would be in the best interest of justice to require the plaintiff to accept less than all of the amount and to devote a part of the amount to such purposes as the court may determine would best serve the goals for which punitive damages are allowed in the first place: vindication of the public interest and deterrence to the defendant and to others who might commit similar wrongs in the future. This viewpoint was again expressed by three Justices in Smith v. States General Life Ins. Co., 592 So. 2d 1021, 1025 (Ala.1992), and in special concurrences in Principal Financial Group v. Thomas, 585 So. 2d 816, 819 (Ala.1991) (with Shores, Houston, and Steagall, JJ., joining), cert. denied, 502 U.S. 1009, 112 S. Ct. 649, 116 L. Ed. 2d 666 (1991); Southern Life & Health Ins. Co. v. Turner, 586 So. 2d 854, 859 (Ala.1991); Union Mortgage Co. v. Barlow, 595 So. 2d 1335, 1348 (Ala.), cert. denied, 506 U.S. 906, 113 S. Ct. 301, 121 L. Ed. 2d 224 (1992); BMW of North America, Inc. v. Gore, 646 So. 2d 619, 629 (Ala.1994).
In a special concurrence in BMW of North America, Inc. v. Gore, supra, a Justice views a procedure that directs a substantial portion of punitive damages awards to the state general fund or some special fund that serves a public purpose as a means of both avoiding the windfall effect and strengthening the jury system:
646 So. 2d at 631. We agree, and we now hold that a part of the punitive damages awarded in future cases (excluding cases based on wrongful death) shall be paid into the state general fund. It is appropriate and fair that some part of the civil fine imposed by juries in the form of punitive damages awards should be devoted to the general welfare of all the citizens of Alabama. We *699 believe that this practice will strengthen the public's confidence in our civil justice system because, under this procedure, wrongdoers can be appropriately discouraged from inflicting harm upon others without inappropriately rewarding the victim.
All punitive damages judgments (excluding all damages in actions based upon wrongful death) that are entered as a result of the new bifurcated procedure shall be allocated as follows: After any post-verdict review is concluded by the trial court, and after appellate review, if any, the amount of the judgment as finally determined shall be paid into the trial court. The trial court shall order all reasonable expenses of the litigation, including the plaintiff's attorney fees (as determined in accordance with any agreement between the plaintiff and the plaintiff's attorney), paid. The trial court shall then order the clerk of the court to divide the remaining amount equally between the plaintiff and the State general fund. The fact that the State may ultimately share in some part of a punitive damages award does not mean that the State has a vested interest in a private lawsuit seeking punitive damages. The State shall have no right to intervene or participate in such cases. The parties will continue to have full authority to settle cases without the participation or consent of the State, and court approval is not required. In the case of settlement, the parties need not designate any part of the settlement proceeds as punitive damages and no part of the settlement proceeds shall be paid into the general fund. In summary, the right of the parties to settle any lawsuit is unaffected by this opinion.
Under our system of government, with its guarantee of separation of powers between the executive, legislative, and judicial branches of government, it is peculiarly and exclusively the function of the judiciary to determine whether a jury award in a civil case exceeds the amount that the State and Federal Constitutions will allow without violating the due process rights guaranteed to all citizens of this State and this country. Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414, 419, 581 So. 2d 414 (Ala.1991). The separation of powers provision, found in Article III, § 42, of the Alabama Constitution of 1901, provides:
Section 43 reads:
In Armstrong v. Roger's Outdoor Sports, we held certain statutes, which attempted to remove all presumption of correctness from a jury verdict and from a trial court's judgment, to be unconstitutional as a violation of the separation of powers provisions of the Alabama Constitution, Article III, §§ 42 and 43.[10]Armstrong, 581 So. 2d at 421. In Armstrong v. Roger's Outdoor Sports we quoted with approval Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891):
581 So. 2d at 419.
In two other cases, this Court had held that statutes enacted by the legislature violated the right-to-jury-trial provisions of the Alabama Constitution. In Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala.1991), this Court held that § 6-5-544(b), Ala.Code 1975, which limited the amount of "noneconomic" damages recoverable in a medical malpractice action, violated the right to trial by jury as guaranteed by Article I, § 11, of the Alabama Constitution 1901. This section provides "[t]hat the right of trial by jury shall remain inviolate." Then, in Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala. 1993), this Court held that a limitation on punitive damages, such as that imposed by § 6-11-21, clearly impairs the traditional function of the jury, thus violating the right to trial by jury guaranteed by Article I, § 11. In those cases, we said that, under an analysis of § 11, the pertinent question is not whether the right still exists under the statute, but whether it still remains inviolate. 627 So. 2d at 885 (quoting Alford v. State, 170 Ala. 178, 197, 54 So. 213 (1910)). Because the majority was convinced that the statutes violated the right-to-jury-trial provision of the Alabama Constitution, it was not necessary in those cases to decide whether those statutes also violated the separation of powers provisions of the Alabama and United States Constitutions. However, it is arguable that these statutes did violate the separation of powers provisions.
Because, under the separation of powers provisions, it is the inherent and exclusive power of the judiciary to determine whether a jury award in a civil case exceeds the amount that the State and Federal Constitutions will allow without violating due process rights, the trial judge in this case, in a post-verdict Hammond hearing, considered the question whether the jury had followed its instructions on the law, as well as whether the verdict was the result of passion or bias in favor of, or against, either side in the litigation. After so doing, he ordered a remittitur of the $15 million award of punitive damages to $12.5 million.
We have independently reviewed the evidence in this case, applying the factors set forth in Green Oil Co. v. Hornsby, 539 So. 2d 218, 223-24 (Ala.1989), cited in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), and quoted in Northwestern Mut. Life Ins. Co. v. Sheridan, 630 So. 2d 384 (Ala.1993), including:
Northwestern Mut. Life Ins. Co. v. Sheridan, 630 So. 2d at 393.
We conclude, as did the trial judge, that the conduct of this defendant was egregious and reprehensible and resulted in a great financial hardship to some of the most vulnerable members of our society. Life of Georgia fraudulently sold policies to people on Medicaid that were totally worthless to the victims of the fraud. Life of Georgia had no risk under these fraudulently sold policies. The practice was a sham and would never have been permitted in this state if the activities of insurance agents were properly regulated. However, as reprehensible as Life of Georgia's conduct was, it is not the most *701 odorous this Court has been required to review. Without in any way condoning the conduct, we nevertheless are compelled, when comparing this conduct with other acts perpetrated upon Alabama citizens, to reduce the award against the defendant Life of Georgia to $5 million.[11]Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991). It is the opinion of this Court that $5 million is not excessive for punishment and deterrence specific to Life of Georgia, considering all of the facts of this case.
The new procedures announced in this case shall be applied in all cases in which punitive damages are sought (excluding all actions for wrongful death) which are filed more than 90 days after the certificate of judgment issues in this case. We are persuaded by the arguments of both parties that these new procedures, including allocation of part of the punitive damages award, should not be applied in this case or in any other case filed within 90 days after the issuance of the certificate of judgment in this case. Inevitably, the new procedures announced here will affect settlement negotiations, and they may, as suggested by some amici curiae, promote more settlements. These and other considerations convince us that these procedures should have prospective effect only. Accordingly, we hold that the procedures announced in this opinion shall be applied in all punitive damages cases (excluding wrongful death cases) filed more than 90 days after the certificate of judgment issues in this case.
The trial of all cases in which punitive damages are sought (excluding cases based upon wrongful death causes of action), that are filed more than 90 days after the certificate of judgment issues in this case, shall be bifurcated. The jury shall first determine liability and the amount of compensatory damages, if any. The plaintiff must prove a prima facie case of conduct supporting an award of punitive damages, and the jury's decision must be based upon clear and convincing evidence. If the jury finds against the defendant, it will also decide, by a special verdict, whether the evidence justifies the imposition of punitive damages. If the jury returns the special verdict in the affirmative, the trial shall resume.
In the second part of the trial, all evidence shall be admitted that is relevant to the question of what amount would be appropriate to accomplish the purposes punitive damages were designed to serve, and it shall be admitted in accordance with § 6-11-23(b), which provides:
All evidence that has heretofore been admissible at post-verdict Hammond/Green Oil hearings, can be introduced under this new procedure, before the jury retires to consider its punitive damages verdict. However, the fact of the existence of liability insurance and *702 the amount thereof cannot be disclosed to the jury. In addition, the discovery of financial information concerning the defendant will be limited as provided in § 6-11-23(b) and shall be limited to information that is relevant to the issue in the case. The net worth of the defendant may or may not be relevant, depending upon the nature of the case. Again, we reiterate that a defendant is not to be punished for its size or its success; instead, it may be punished only for the tortious conduct proved in the trial of the case. This new procedure is intended to allow the jury to decide, based upon all the evidence that is relevant to that inquiry, the award that the specific defendant before the jury should be required to pay as punishment for the specific conduct made the basis of the action.
If the punitive damages verdict is challenged in a post-verdict motion as excessive or inadequate, it must still be considered by the trial judge through the procedures set out in Green Oil Co. v. Hornsby, supra, and Hammond v. City of Gadsden, supra.
All punitive damages (excluding all damages in actions based upon wrongful death) awarded by judgments entered as a result of the new bifurcated procedure established by this opinion shall be allocated as follows: After any post-verdict review is concluded by the trial court, and after appellate review, if any, the amount of the judgment as finally determined shall be paid into the trial court. The trial court shall order all reasonable expenses of the litigation, including the plaintiff's attorney fees, paid. In doing so, the trial court will enforce any agreement between the plaintiff and counsel for the plaintiff as to attorney fees. The trial court shall then order the clerk of the court to divide the remaining amount equally between the plaintiff and the State general fund. The State shall have no vested right in any private lawsuit in which punitive damages are sought and shall not be permitted to intervene or participate in any way in the trial or settlement of such cases. Court approval is not required to settle such cases. In the case of settlement, the parties need not designate any part of the settlement as punitive damages, and no part of the settlement proceeds shall be paid into the general fund. In summary, the right of the parties to try and settle any lawsuit is unaffected by this opinion. Settlement of these cases, like all others, is encouraged.
The award of $12.5 million in punitive damages is reduced to $5 million.
The new procedures announced in this case shall be applicable only to cases in which punitive damages are sought (excluding all actions based upon wrongful death) and only to cases that are filed more than 90 days after the certificate of judgment issues in this case.
That portion of the judgment awarding compensatory damages is affirmed. The award of punitive damages is reduced to $5 million. If the plaintiff does not, within 28 days of the date of this opinion, file in this Court a remittitur of $7.5 million, then the defendant shall be granted a new trial.
APPLICATIONS GRANTED; OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED CONDITIONALLY.
ALMON, HOUSTON, KENNEDY, INGRAM, and COOK, JJ., concur.
HOOPER, C.J., concurs in the result in part and dissents in part.
MADDOX and BUTTS, JJ., concur in part and dissent in part.
HOOPER, Chief Justice (concurring in the result in part and dissenting in part):
I concur in the result as to parts II, III, and IV, as the result is stated in the "Summary of Holdings" portion of the opinion. See 684 So. 2d at 701-702. Specifically: (1) I agree with the decision to allocate half of a punitive damages award to the State, because the plaintiff does not have a proprietary or any other interest in a punitive damages award, see City Bank of Alabama v. *703 Eskridge, 521 So. 2d 931, 933 (Ala.1988); (2) I agree with the reduction of the punitive damages award from $12.5 million to $5 million; and (3) I agree with the procedures set out in part IV. I dissent from part I of the majority opinion because that holding violates the clear intent of the Legislature in Ala.Code 1975, § 6-11-23(b), and also changes a common law principle of 140 years' standing that had excluded evidence of a defendant's wealth or financial position from being considered by the jury.
Evidence of a defendant's wealth or financial standing has never been admissible in a jury trial. Southern Life & Health Ins. Co. v. Whitman, 358 So. 2d 1025 (Ala.1978); and Ware v. Cartledge, 24 Ala. 622, 627 (1854). This principle was reinforced by the fact that the Hammond/Green Oil factors were never intended to be considered by the jury, but solely by the judge in considering whether a jury award was proper. Reserve National Ins. Co. v. Crowell, 614 So. 2d 1005, 1009 (Ala.1993). Allowing evidence of a defendant's wealth into evidence brings the politics of resentment into the courtroom and encourages and legitimates the Robin Hood reaction.
In 1987, in the "Tort Reform Act," the Legislature adopted the common law rule excluding evidence of a defendant's financial position. Section 6-11-23(b) states: "[T]he trial court shall ... either conduct hearings or receive additional evidence, or both, concerning the amount of punitive damages." That section goes on to state that evidence of the economic impact of the verdict on the defendant "shall not be subject to discovery, unless otherwise discoverable, until after a verdict for punitive damages has been rendered" (emphasis added). The purpose of § 6-11-23(b) was to prevent the exposure of such evidence to a jury. The majority's holding on this point contravenes the clear intent of the Legislature by allowing a jury to consider evidence of a defendant's wealth.
The majority addresses the issue of "prejudice" by stating: "Juries are presumed to follow the law as instructed by the trial court. There is no reason to assume that the jury would disregard the trial court's instruction on this issue." 684 So. 2d at 694. In other words, the majority appears to be saying that defendants should not be concerned about the danger of prejudice because the trial judge can always instruct the jury to disregard certain evidence after the fact or remedy the error in a jury's hearing any evidence that should not have been heard. This rationale could also support an argument in favor of abolishing all limiting rules of evidence and letting the jury hear any and all evidence, such as hearsay and opinions, regardless of its relevance, trustworthiness, or prejudicial content, because juries are presumed to listen to the trial judge's instructions, and those instructions may direct the jury to unring the bells that were rung by the parties. The majority's approach to evidence endangers the constitutional guarantee of a fair trial.
The foundation of western law is "equal justice under the law." "Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honor the person of the mighty: but in righteousness shalt thou judge thy neighbor." Leviticus 19:15 (King James). The temptation of a jury to ignore this fundamental principle is the reason evidence of a "mighty" defendant's wealth is excluded from consideration by the jury.
I concur in the result as to parts II, III, and IV, but, for the foregoing reasons, I must dissent as to part I.
MADDOX, Justice (concurring in part; dissenting in part).
I concur in that portion of the majority opinion that affirms the judgment entered upon the jury verdict, conditioned upon the plaintiff's agreement to remit all but $5,000,000 of the punitive damages awarded.
I also concur in that portion of the opinion that adopts a procedure requiring a bifurcation of trials in cases in which claims for punitive damages are presented to a jury, but I must point out that this is a major procedural change, and I would have preferred that this Court follow the normal practice when adopting procedural changes. By following our usual procedures of giving notice to the bench and bar and other interested *704 parties of such a proposed change in our procedures, such interested persons would have had an opportunity to comment on the proposal before its adoption.
For at least three reasons, I cannot agree with the holding of this Court that establishes a procedure for the distribution of a portion of the punitive damages award to the State. First, I question the power of this Court to direct the payment of damages recovered in a civil case into the General Fund of the State; second, I believe that the Legislature is the proper branch of government to make policy determinations of this magnitude; and third, even if the Court has the power to adopt the procedure under its rulemaking power, I would not adopt the procedure without giving notice of the proposal to the parties, the bench and bar, and the public, so that each member of each group would have an opportunity to comment on the proposal.
Before I specifically address the reason for my vote, I offer this preface about the development of the law in this state relating to damages, especially punitive damages, that can be recovered for breach of a noncommercial contract of insurance. That law has dramatically changed over the past decade or so, and actions such as this one, in which a jury awarded $15,000,000 in punitive damages, have raised some serious policy questions, such as: What type of remedy should be employed when an insurer fails to pay a valid claim made by its insured? What is the measure of damages and to whom should they be paid? What is the proper role of the courts in reviewing jury awards that are claimed to be excessive? Can courts direct the distribution of a punitive damages award? In many of the past cases involving alleged breaches of insurance policies, I had to dissent. I specifically disagreed when the Court selectively struck down most of the so-called "Tort Reform" legislation that was adopted to address some of these issues.
Much of the history of the development of the law that allows juries to assess punitive damages against an insurer is contained in a dissenting opinion I filed in Continental Assur. Co. v. Kountz, 461 So. 2d 802, 810 (Ala. 1984) (Maddox, J., dissenting), wherein I discussed the development of the tort of bad faith and why I thought that either this Court or the Legislature should provide an alternative to the tort of bad faith failure to pay a noncommercial insurance claim, by permitting the recovery of attorney fees and consequential damages when a policyholder was forced to go to court to establish entitlement to insurance benefits.[12]
In the following sections of this opinion, I will specifically state the reasons why I concur in part and why I must also respectfully dissent in part.
First, I will discuss why I concur in that portion of the opinion that conditionally affirms the judgment and orders a remittitur.
Jury awards of punitive damages in Alabama have dramatically increased in Alabama in the last 15 years. See Appendix A, which was included as an appendix to Life of Georgia's brief in this case, and which purports to be based on published reports of cases from Alabama.[13] The substantial amount of those jury awards in Alabama has caused defendants to ask this Court to review the awards and to either grant a new trial or order a remittitur. Many defendants have claimed that the awards of punitive damages by Alabama juries violate their federal constitutional rights and some have appealed these awards to the United States Supreme Court. See, e.g., Aetna v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823 *705 (1986); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), BMW of North America, Inc. v. Gore, 646 So. 2d 619 (Ala.1994), cert. granted, ___ U.S. ___, 115 S. Ct. 932, 130 L. Ed. 2d 879 (1995).
The jury award of $15,000,000 is obviously excessive, and the reduction of the judgment to $5,000,000 by this Court still imposes a substantial penalty on the defendant. After reviewing the record, and comparing this judgment to other judgments in similar cases that have been approved by this Court, and after reviewing the defendant's constitutional claims, I concur in the conditional affirmance of the judgment in this case. However, my concurrence is subject to the caveats expressed in this special writing. My reasons are as follows: (1) this was an action alleging fraud, and, although the evidence was conflicting regarding whether a misrepresentation was made, the jury, as the factfinder, determined that a misrepresentation had been made; and, (2) this Court, on other occasions, has approved substantial penalties levied against defendants under similar circumstances. National States Ins. Co. v. Jones, 393 So. 2d 1361 (Ala.1980) (trial judge remitted $3,500,000 jury verdict in an insurance fraud case to $500,000, and this Court affirmed); North Carolina Mut. Life Ins. v. Holley, 533 So. 2d 497 (Ala.1987) ($1,000,000 jury award was subjected to a remittitur of $500,000). I realize that this judgment, even after the remittitur, is substantially higher than the judgments approved in those two prior fraud cases, but, according to the statistics furnished to us by Life of Georgia, which appear in Appendix A to this opinion, judgments of this size and greater have been approved by this Court in the past for similar or less egregious conduct. I personally know that to be true, because I have reviewed the records in many, if not all, of the cases coming before this Court.
I have also examined Life of Georgia's claim that this verdict violates its federal constitutional rights. If I were addressing the federal constitutional question without the benefit of all the decisions of the United States Supreme Court on the question, I would agree that Justice O'Connor, in her dissents in Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989), and TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993), correctly interpreted the provisions of the United States Constitution on the issue. Of course, her reasoning did not prevail, and my prediction about what the United States Supreme Court would do in Pacific Mutual Life Ins. Co. v. Haslip, 553 So. 2d 537, 544 (Ala.1989) (Maddox, J., concurring in part; dissenting in part), was incorrect, because the United States Supreme Court affirmed the decision of this Court. Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).
I have carefully read several of the decisions of the Supreme Court of the United States that address the question of jury awards of punitive damages, and I have read a transcript of the oral arguments in the BMW case, now pending before the United States Supreme Court. Based upon my reading of those cases, and based upon my understanding of the questions asked at oral argument by the Justices in BMW, it appears to me that the Supreme Court of the United States, at this time, requires State justices and judges to review jury awards of punitive damages to ensure that juries do not unreasonably or disproportionately punish a defendant; I have made the required review. It also appears to me that the Supreme Court, in BMW, will address the question whether a State, through a State jury, can punish a defendant not only for misconduct occurring in the State, but also for misconduct occurring outside the State. In BMW, the Court may also address the question whether a defendant, like Life of Georgia in this case, can be punished not once, but twice, for the same or similar misconduct.
On this issue of double punishment, there was evidence presented in this case of an alleged pattern and practice of fraud that involved policies sold not just in Alabama but in other states as well.[14] This fact was argued *706 to the jury, which very well may have considered other out-of-state transactions in its deliberations; such evidence could have influenced the jury's deliberations and the resulting punitive damages award in this case.[15] The issue of allowing a jury to consider evidence of alleged misconduct occurring outside the State is presented in the BMW appeal, but the Supreme Court of the United States has not addressed it yet.
I cannot predict what the Supreme Court of the United States will do in BMW, so I do not know whether a State can successively punish the same defendant in separate civil cases without violating the Double Jeopardy Clause or the Interstate Commerce Clause of the United States Constitution. I do know that in the oral arguments in BMW some of the Justices asked questions relating to these issues. I also know that, as was true in BMW, separate juries, based upon the same or similar evidence of misconduct, can reach alarmingly disparate results. In BMW for example, the jury awarded $4 million in punitive damages; but another jury, hearing much of the same evidence about BMW's alleged misconduct presented by the same attorneys, awarded $0 punitive damages. Yates v. BMW of North America, Inc., 642 So. 2d 937 (Ala.Civ.App.1993). In Foster v. Life Ins. Co. of Georgia, 656 So. 2d 333 (Ala. 1994), which involved another claimant who alleged the same misconduct as that alleged in this case, and who was represented by the same counsel as represents the plaintiff in this case, the jury awarded Ms. Foster $1 million in punitive damages; the jury in this case awarded the plaintiff $15 million. Such disparate awards give some credence to the claims frequently made by defendants that the system of awarding punitive damages in Alabama is much like a lottery.
It would have been helpful to me in reviewing the excessiveness-of-the-verdict claim to have the decision of Supreme Court of the United States in BMW; that case contains some of the same legal questions that are present here, or similar ones. Even without the benefit of that decision, I know that this Court has said that the award of punitive damages is a civil punishment and is for the purpose of altering the behavior of wrongdoers. See, e.g., Pitt v. Century II, Inc., 631 So. 2d 235 (Ala.1993), Lozier Corp. v. Gray, 624 So. 2d 1034 (Ala.1993), Reserve Nat'l Ins. Co. v. Crowell, 614 So. 2d 1005 (Ala.1993), cert. denied, 510 U.S. 824, 114 S. Ct. 84, 126 L. Ed. 2d 52 (1993), General Motors Corp. v. Johnston, 592 So. 2d 1054 (Ala. 1992), and Maryland Casualty Co. v. Tiffin, 537 So. 2d 469 (Ala.1988). The Supreme Court of the United States has said that the awarding of punitive damages for wrongful actions is a form of state regulation that can be as effective as statutory regulations designed to protect consumers and the general public from similar wrongful actions. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247, 79 S. Ct. 773, 780-81, 3 L. Ed. 2d 775 (1959).
When businesses are involved in interstate commerce and punishment is rendered against them, additional questions are raised. During the oral arguments in BMW, one or more of the Justices asked whether "interstate commerce enter[ed] the calculus" of determining whether a particular punishment was prohibited; however, the Court has not yet answered the question. The Supreme Court, in BMW, could very well hold as it held in Healy v. Beer Institute, Inc., 491 U.S. 324, 336, 109 S. Ct. 2491, 2499, 105 L. Ed. 2d 275 (1989):
Even though I have some reservations because I do not have the latest expression from the United States Supreme Court, I concur in the conditional affirmance based on the law that the Supreme Court has set out in several of its opinions, and without benefit of an opinion in the BMW appeal. In some respects this case is similar to TXO, but in another respect it is similar to BMW. Factually, it is most similar to Haslip, except that, in Haslip, as I recall, the plaintiff did not present as much evidence of a pattern and practice of misconduct as was presented here against this defendant.[16]
I concur with the majority's decision to require a bifurcated proceeding in all cases, except wrongful death cases, where a punitive damages verdict is returned; but, I would have preferred that the Court not adopt the procedure by caselaw. I would have followed our usual procedure of drafting a proposed rule, giving notice to the bench and bar and other interested citizens, and setting a time within which any person could file comments, pro or con, about the rule. The Court, by setting the effective date of the new procedure as three months after the certificate of judgment issues in this case, does offer the bench and bar, and possibly the Legislature, a limited opportunity to address the new procedure; that opportunity is better than none. I do believe such a procedure will be beneficial to juries and to courts that are called upon to review their findings. I have been concerned for some time about allowing juries to fix an amount of exemplary damages and giving them standardless discretion in doing so. In criminal cases, this State took the power to fix penalties from the jury several years ago and vested the power to sentence in the trial judges. Even in capital cases, the jury can only recommend a sentence to be imposed, after hearing evidence of aggravating and mitigating circumstances; the trial judge is not bound by that recommendation.
I make one further observation. The rule established by the majority opinion excepts wrongful death cases, where only punitive damages can be awarded. Personally, I believe that the Legislature should amend the wrongful death statute to provide for the recovery of compensatory damages, which other jurisdictions allow, but the Legislature, even when adopting the so-called "Tort Reform" package, did not address this issue.
I now come to the portion of the opinion with which I must respectfully disagree. The majority quotes from a special concurrence in BMW, 646 So. 2d at 629, and now holds that a plaintiff has no right to recover punitive damages. 684 So. 2d at 692. While I agree, in principle, with the Court's holding that punitive damages, in a civil case, are for punishment and that it might be desirable that a portion of the award be paid into the State treasury, I do not believe that this Court has the power, or that it should assume the power, of determining that a portion of an award of punitive damages must be distributed to the State. I believe that the power to collect revenue for the State treasury is a plenary power of the Legislature, and is beyond the powers of this Court.
At least three sections of Alabama's Constitution seem to address this question. Section 42 provides:
Section 43 provides:
Furthermore, § 70 provides, in part, that "[a]ll bills for raising revenue shall originate in the house of representatives." It is axiomatic that the judiciary declares what the law is, the Legislature what it shall be. Alabama Life Ins. & Trust Co. v. Boykin, 38 Ala. 510 (1863); Lindsay v. United States Sav. & Loan Ass'n, 120 Ala. 156, 24 So. 171 (1898); Champion v. McLean, 266 Ala. 103, 95 So. 2d 82 (1957) (the power to make the law has been committed to the legislature by the Constitution, and the only power of the court is to declare the law as enacted by the legislative branch of government).
This Court has addressed the power of courts to deal with fines in Ellis v. State, 502 So. 2d 694 (Ala.1986). Although I did not agree, this Court held that where a district judge, by court order, imposed a traffic fine of $50.00 over the normal fine because the defendant had a radar detector in the automobile, the judge was legislating, even though the fine was within the statutory limits of § 32-5A-8, in that the judicial action created an additional fine, which, under § 43 of the Constitution, could be enacted only by the Legislature.[17]
As I stated earlier, I personally would favor a procedure whereby a portion of punitive damages could be paid into the State treasury, because it would address the troublesome issue of a single plaintiff's receiving a "windfall" or winning a "lottery." I would point out that only a few states have adopted a procedure for requiring the prevailing party in a civil case who recovers punitive damages to pay part of the award to the state general fund. Although the majority opinion states that four states have adopted this practice, my research shows that nine states have adopted statutes requiring the payment of a portion of an award of punitive damages to the state government. The states with such punitive damages legislation are: Colorado (Colo.Rev.Stat. § 13-21-102(4) (1987)), Florida (Fla.Stat. § 768.73(2)(b) (1993 Supp.)), Georgia (Ga.Code Ann. § 51-12-5.1(e)(2) (1993)), Illinois (735 ILCS 5/2-1207), Iowa (Iowa Code § 668A.1(2) (1993)), Missouri (Mo.Rev.Stat. § 537.675(2) (1992 Supp.)), New York (N.Y.Civ.Prac.L. & R. § 8701 (McKinney 1993 Supp.)), Oregon (Or. Rev.Stat. § 18.540(1) (1991)), and Utah (Utah Code Ann. § 78-18-1(3) (1992)). However, the Colorado statute has been held unconstitutional by the Colorado Supreme Court,[18] the Florida statute has been repealed by the Florida legislature, and a federal district court has declared Georgia's statute unconstitutional.[19] In addition, when Colorado and Florida had such laws in effect, they did not allow the attorney for the plaintiff to take a contingency percentage from the portion that was to be allocated to the state.[20]
I would also point out that some recent decisions of the United States Supreme Court suggest that if a state is the recipient of punitive damages awards, such awards may be subject to judicial scrutiny under the Eighth Amendment's Excessive Fines *709 Clause. The Eighth Amendment states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (Emphasis added.) Although the majority is correct in its assertion that in Browning-Ferris Industries v. Kelco Disposal Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989), the Supreme Court held that the Eighth Amendment did not apply to the award of punitive damages in a civil case between private parties, in my opinion this case suggests that the Excessive Fines Clause might apply to punitive damages awards where the state receives the proceeds of such awards. Specifically, the Court stated:
Browning-Ferris Industries, 492 U.S. at 263-64, 109 S. Ct. at 2914. (Emphasis added.)
As indicated by the Court in Browning-Ferris, the history behind the development and adoption of the Eighth Amendment plays an important role in determining its applicability to awards of punitive damages in civil cases.[21] "The Eighth Amendment was based directly on Article I, § 9, of the Virginia Declaration of Rights of 1776, which had in turn adopted verbatim the language of § 10 of the English Bill of Rights." Browning-Ferris, 492 U.S. at 266, 109 S. Ct. at 2914. In 1689, Parliament required William of Orange to accept the provisions of the Bill of Rights as a condition precedent to offering him the throne. Section 10 of the English Bill of Rights had been adopted in order to curb the excessive use of amercements, which had been generously levied by previous English monarchs. Amercements "were payments to the Crown, and were required of individuals who were `in the King's mercy,' because of some act offensive to the Crown." 492 U.S. at 269, 109 S. Ct. at 2917. History suggests that the use of these amercements was to impose penalties for both civil and criminal wrongs committed, and it seems clear to me that Browning-Ferris would have been decided differently had a portion of the civil fine in that case been paid to the government, because the civil fine then would have been similar, in nature, to "amercements," which were defined in Browning-Ferris as follows:
492 U.S. at 269, 109 S. Ct. at 2917.
History suggests that because of the numerous abuses that occurred from the use of amercements both Magna Carta and the English Bill of Rights placed restraints on their imposition. Based on the historical development of the Eighth Amendment, the Supreme Court, in Browning-Ferris, ruled that the amendment's primary purpose was to curb governmental action, rather than to place restraints on the awards given in civil actions between private parties.[22] 492 U.S. *710 at 268, 109 S. Ct. at 2918-17. In addressing "governmental" versus "private" action, the Court stated that "the text of the [Eighth] Amendment points to an intent to deal only with the prosecutorial powers of the government." Browning-Ferris, 492 U.S. at 275, 109 S. Ct. at 2920. (Emphasis added.) The Court held that the Excessive Fines Clause did not apply to the punitive damages award in the civil case before it, because the state had not "used its civil courts to extract large payments or forfeitures for the purpose of raising revenue or disabling some individual." 492 U.S. at 275, 109 S. Ct. at 2920. (Emphasis added.) The Court warned, however, that the Excessive Fines Clause might apply in cases where punitive damages were awarded and a state government either has "prosecuted the action" or "has any right to receive a share of the damages awarded." 492 U.S. at 264, 109 S. Ct. at 2914. (Emphasis added.) Consequently, there is little doubt in my mind that the decision the Court makes today means that future attacks on punitive damages awarded in this state in civil cases after the effective date of the allocation procedure established by this opinion, will probably be subject to an analysis under the Excessive Fines Clause of the Eighth Amendment. In summary, it appears to me that the decision in Browning-Ferris suggests that where a sovereign "has [a] right to receive a share of the damages awarded," even in a civil case, an Eighth Amendment analysis might be appropriate. 492 U.S. at 264, 109 S. Ct. at 2914. I am of this opinion because the Court observed, in holding that the Eighth Amendment was intended only to restrain governmental action, that when the Eighth Amendment was adopted the word "fine" was "understood to mean payment to the sovereign as punishment for some offense." Browning-Ferris, 492 U.S. at 265, 109 S. Ct. at 2915.
By analyzing the holding in Browning-Ferris, I do not mean to suggest that the Legislature of Alabama could not require the payment of a portion of punitive damages to the State General Fund, because I believe that it could; however, whether the fine is paid to the State by court order or by statute, I believe the amount of any fine in any given case would be subject to an analysis under the Excessive Fines Clause of the Eighth Amendment.
Although the Double Jeopardy Clause of the United States Constitution probably will not be held to apply to a purely civil case, that rule might change if a portion of a punitive damages award is paid to the state. Cf. United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), where the Court held that the constitutional prohibition of double jeopardy required the reduction of a civil award rendered in favor of the United States against a defendant who had previously been subject to criminal sanctions for the same conduct. The Court in Halper discussed whether a civil award could be construed as placing a defendant in double jeopardy, and said:
Halper, 490 U.S. at 447, n. 7, 109 S. Ct. at 1901, n. 7. The Court announced that the purpose of the award is controlling under this analysis, rather than whether the action was pursued in a civil or in a criminal context:
490 U.S. at 448, 109 S. Ct. at 1901-02.
Some of the questions I raise about punishing a defendant more than once may be answered by the Supreme Court in BMW, which is now pending before it, but, whether that Court answers these questions or not, it appears to me that punitive damages are penal in nature and that all the safeguards of both the Alabama Constitution and the United States Constitution would apply. I do know that the Supreme Court of the United States has elected to grant certiorari review, and to write opinions, in at least three cases from this state in the past few years in which the question of excessive punitive damages awards was addressed. I would also point out that my suggestion of adopting a rule that would provide for the recovery of extracontractual damages in insurance cases, including attorney fees, would be preferable and fairer to the litigants, and would not result in the possibility that the attorney for the plaintiff might recover more than the plaintiff and the state, if 50% of the award (after expenses and attorney fees) went to the State, as the majority opinion allows. Another reason why I think compensatory damages, including extracontractual damages, would be preferable to a rule that permits the recovery of punitive damages, is that such a rule would eliminate problems about "windfalls" to one plaintiff and would remove most of the legal problems that could develop when questions of double punishment arise.[23] I know further that in its most recent expression on punitive damages, that Court stated in Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 114 S. Ct. 2331, 129 L. Ed. 2d 336 (1994), the following:
512 U.S. at 432, 114 S. Ct. at 2340-41.
On several occasions I have suggested that the Legislature should consider adopting legislation that would protect both the consumer and the insurer in these noncommercial insurance cases. If the statistics appearing in Appendix A are correct, and I have no reason to doubt them, the State of Alabama seems to be out of line with neighboring states in regard to the amount of punitive damages awarded. It appears to me that the legislative branch is the proper forum for addressing any problem that does exist and for making the policy choices that must be made. This suggestion on my part is not new. I first suggested it in my dissenting opinion in Kountz, where I stated that "in our scheme of government, policy questions like [those presented in a bad-faith-failure-to-pay case], especially since they involve the heavily regulated insurance industry, should properly be addressed by the Legislature." 461 So. 2d at 812. In that dissent, I also stated why I thought this Court should consider a rule allowing extracontractual damages, suggesting that there very well might be instances when insurance companies pay claims that factually should have been denied, but the company opted to pay the claim rather than face the possibility of a lawsuit. I also suggested that if punitive damages *712 awards in those instances do occur, then premiums for all other policyholders necessarily rise to offset these added costs. On the other hand, I also stated that the proliferation of lawsuits and the size of the jury verdicts suggested consumer dissatisfaction with some practices that were occurring. No doubt, there are instances when companies require policyholders to resort to a lawsuit, even though the insurer's factual basis for denying a claim is questionable. I have previously stated that "[t]he fairest rule, ... in view of these two policy considerations, would be [a procedure] which would allow any party to a noncommercial insurance contract, who is forced to go to court in order to recover his contract claim, to recover his consequential damages as well, including reasonable attorneys' fees." Kountz, 461 So. 2d at 813.
Although the imposition of punitive damages can punish and deter, it would appear to me that ideally the legislative branch should make the regulations, and that the executive branch should enforce them fairly, to effect the regulatory purpose of protecting the public welfare. See my opinion in Aetna Life Ins. Co. v. Lavoie, 505 So. 2d 1050, 1056 (Ala.1987), where I specially concurred and suggested the Legislature should address the public policy concerns relating to punitive damages.
On original deliverance, I concurred in that portion of the majority opinion affirming the judgment conditionally upon the plaintiff's agreement to remit all but $5,000,000 of the punitive damages awarded, and in that portion of the opinion that adopted a procedure requiring a bifurcation of trials in cases in which claims for punitive damages are presented to a jury. I did so even though I pointed out that this Court generally gives notice to the Bench and Bar before adopting such a substantial change in civil procedure. I still concur as to those two holdings. However, I dissented from that portion of the opinion that establishes the policy of allocating 50% of all punitive damages awards, less attorney fees, to the state's general fund, and I expressed concerns over the constitutional implications raised by this decision. I still dissent in that regard. Because I believe that the rehearing applicants and the amici curiae have raised many meritorious arguments in their applications and briefs in support thereof, I must respectfully dissent from the majority's refusal to address many of the important issues raised on rehearing.
Life of Georgia applied for a rehearing on December 1, 1995, and it has been supported in its position by amici curiae briefs from the Alabama Defense Lawyers Association; the State of Alabama; Blue Cross and Blue Shield of Alabama; Alabama Gas Corporation; Alfa Insurance Company; the Chamber of Commerce of the United States; the Product Liability Advisory Council, Inc.; USX Corporation; the University of Alabama Health Services Foundation, P.C.; Amerex Corporation; and the Wausau Insurance Companies. Life of Georgia and the amici raise several substantial questions, and they point out why the procedure adopted in this case is not only confusing, but also violates Life of Georgia's constitutional rights, both state and federal.
The plaintiff has also filed an application for rehearing. Her application is supported by amicus briefs from the Alabama Trial Lawyers Association and an individual named Mary Lambeth.[24]
Although the majority, no doubt persuaded by the excellent and well-reasoned arguments advanced by both the parties and the amici curiae, has modified the opinion to change the effective date of this caselaw and has cleared up some of the confusion in the original opinion regarding when the new procedure would take effect and which cases would be affected, the majority has not addressed some of the basic constitutional arguments pertaining to separation of powers of government and the legal effect of paying into the general fund of the state a portion of the punitive damages.
*713 I do not separately address the arguments that Life of Georgia and the amici make, but they include substantial legal issues, especially regarding federal constitutional law. I set out some of these concerns in the main portion of my dissent and I do not restate them here.
There is now pending before the United States Supreme Court a case from this Court styled BMW of North America, Inc. v. Gore, 646 So. 2d 619 (Ala.1994), cert. granted, ___ U.S. ___, 115 S. Ct. 932, 130 L. Ed. 2d 879 (1995), in which the petitioner has raised some of the same arguments that are made by Life of Georgia in its application for rehearing. I would have preferred to have the United States Supreme Court's latest expression on the federal constitutional issues raised in BMW before acting on this application for rehearing. My views are that the Eighth Amendment could be implicated where a portion of the punitive damages award goes to the state and that there could be federal constitutional violations where multiple penalties are imposed against a corporation for the same wrongful conduct, where, as here, the wrongful conduct has already been considered in setting the penalty in another case; the wrongful conduct dealt with in this case was considered in Foster v. Life of Georgia, 656 So. 2d 333 (Ala.1993) (this Court reinstated a $1 million punitive damages judgment against Life of Georgia for the same conduct complained of in this case). Having read the opinions rendered by the United States Supreme Court and having considered the questions the Justices of that Court are asking during oral arguments in cases involving punitive damages and multiple parties, some of whom may be located outside the forum state, I believe that the judgment in this case presents serious constitutional questions that should be fully answered. See, Honda Motor Corp. v. Oberg, 512 U.S. 415, 114 S. Ct. 2331, 129 L. Ed. 2d 336 (1994); TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993); Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Cf. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 804-08, 107 S. Ct. 2124, 2136-38, 95 L. Ed. 2d 740 (1987) (the United States Supreme Court held that counsel for a party that benefits financially from a federal court order may not be appointed as prosecutor in a contempt action alleging a violation of that order). See also, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963), which addresses the issue of quasi-criminal statutes.
For these reasons and those stated in the main part of this opinion, I must respectfully dissent from the majority's refusal to address most of the issues raised in the applications for rehearing.
*714
*715
*716
*717
*718
*719 BUTTS, Justice (concurring in part and dissenting in part).
I concur in the establishment of a bifurcated trial in cases where a plaintiff seeks punitive damages from a defendant. I believe such a procedural change is within this Court's authority, pursuant to Ala.Code 1975, § 12-2-7. See Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989). However, I would add several caveats.
The majority's opinion states that in the punitive damages portion of the trial, the jury is to be informed of the factors set forth in Ala.Code 1975, § 6-11-23, Hammond, Green Oil, and other case law. 684 So. 2d at 691. As a former circuit court judge, I believe that submitting facts and information from other cases, perhaps in an attempt by opposing attorneys to establish the amount of punitive damages awarded by other juries in "comparable cases," will be more confusing and time-consuming than it will be helpful.
Further, taking the Green Oil rule, the majority will have the jury informed of the plaintiff's costs of litigation, including attorney fees. I would either delete this requirement or require that the jury also be informed of the defendant's costs of litigation, including attorney fees.
I respectfully dissent from the majority's holding requiring apportionment of a punitive damages award between the plaintiff and the State. It is for the legislature to determine whether a portion of a punitive damages award should be paid to the State and, if so, what percentage of the award the State should receive, and it is for the legislature to determine the State fund or agency to which the monetary award should be allotted.
As the majority notes, lawsuits and jury awards of punitive damages have become virtually the only effective weapon people have to deter powerful entities from conducting tortious activities within this State. This condition has arisen because the State of Alabama lacks strong consumer protection laws and because the State agencies whose duty it is to enforce the existing body of laws are woefully underfunded. For example, Alabama's Insurance Department, with a scant budget of less than $2 million, a staff of fewer than 30 professional employees, including only 4 consumer protection specialists, is responsible for regulating Alabama's $6 billion insurance industry, composed of 1100 companies.[25]
It is clear that Alabama needs stronger consumer protection laws and a realistic means to enforce them. The majority has now established that that portion of punitive damages allocated to the State will be paid into the General Fund. Common sense dictates, however, that the apportionment should be used to attack the underlying problem at its source. I believe that, if there is to be an apportionment to the State, it should be used to expand and strengthen the department or agency that polices the industry being punished. For example, in a case such as this, where an insurance company is found guilty of consumer fraud, the apportionment should be paid to the Alabama Department of Insurance. The punitive damages award would then become a meaningful investment in deterrence, rather than an unconditional gift to the State's General Fund.
[*] Note from the Reporter of Decisions: Publication of this opinion was authorized December 27, 1996. As of that date, however, the Alabama Supreme Court had not issued a certificate of judgment in this case. See the order of the United States Supreme Court in this case, on certiorari review, dated October 15, 1996, ___ U.S. ___, 117 S. Ct. 288, 136 L. Ed. 2d 207. The case was, as of December 27, 1996, before the Alabama Supreme Court on remand from the United States Supreme Court, for further consideration.
[1] "Corporate America's fear of juries may be overblown," Business Week, November 8, 1993.
[2] "Civil Jury Cases and Verdicts in Large Counties" is a joint project of the Bureau of Justice Statistics and the National Center for State Courts.
[3] Richard C. Reuben, "Plaintiffs Rarely Win Punitives, Study Says," A.B.A. Journal, p. 26, October 1995.
[4] Statistics according to the State Court Caseload Statistics Annual Report 1992, published February 1994. The report is a joint project of the Conference of State Court Administrators, the State Justice Institute, and the National Center for State Courts Court Statistics Project.
[5] Davis Carr, "Punitive Damages and Post-Verdict Procedures: Where Are We Now and Where Do We Go From Here?" Ala. Lawyer, Vol. 51, March 1990, pp. 94-95. Mr. Carr's article carried the following note: "As to this listing of factors, the author hereby acknowledges `limited plagiarism' from a handout by Danner Frazer, Jr., `How to Handle a Post-Judgment Punitive Damage HearingDiscovery to End,' presented at the Alabama Defense Lawyers Association fall meeting, 1989."
[6] Ill.Rev.Stat. Ch. 110, para. 2-1207 (Supp. 1987); now cited as Ill.St. Ch. 735 § 5/2-1207.
[7] Iowa Code Ann. § 668A.1(2)(b) (West Supp. 1987).
[8] Fla.Stat.Ann. § 768.73(2) (West Supp. 1987); held constitutional in Gordon v. State, 608 So. 2d 800 (Fla.1992); repealed by Laws 1992, c. 92-85, § 3, effective July 1, 1995.
[9] Colo.Rev.Stat. § 13-21-102(4) (1987); held unconstitutional in Kirk v. Denver Publishing Co., 818 P.2d 262 (Colo.1991), because a judgment for exemplary damages qualifies as a property interest under Colorado law (there is no right to punitive damages under Alabama law); repealed by Laws 1995, H.B. 95-1090, § 1, effective March 9, 1995.
[10] In Armstrong, we wrote: "In summary, we hold that § 6-11-23(a), § 6-11-24(a), and the parenthetical phrase in the last sentence of § 6-11-23(b) are unconstitutional. Section 6-11-24(b) and the remaining portion of § 6-11-23(b) are constitutional as construed herein." 581 So. 2d at 421.
[11] Justice Maddox in his writing, concurring in part and dissenting in part, has attached statistics appearing on pages he designates as Appendix A to his special writing, and he cites the data included on those pages. Those pages appearing as Justice Maddox's Appendix A were not authenticated and were merely attached to a brief filed in this case. The writing on those pages has no probative value.
[12] I realize, of course, this present case does not involve a bad faith failure to pay, but it arose out of a relationship between an insured and an insurer.
[13] I would point out that the statistics given by the majority concerning the percentages of cases won and lost by plaintiff attorneys were not in the record of this case. Although the majority cites these statistics to support the proposition that plaintiffs rarely win cases and that their attorneys often lose "the amount [they have] expended in filing the action and in preparing for trial," 684 So. 2d at 694, this proposition is persuasive only if one assumes that all these actions represent valid claims. Barring this assumption, these statistics could be used to argue that a large number of frivolous actions are being filed.
[14] According to the appellant's brief, only one of the witnesses who testified to Life of Georgia's pattern and practice of selling these policies to elderly citizens resided in the State of Alabama. That witness was Mattie Foster, the plaintiff in Foster v. Life Insurance Co. of Georgia, 656 So. 2d 333 (Ala.1994).
[15] Ms. Johnson, the plaintiff in this case, testified in the Hammond/Green Oil hearing at the trial level in Ms. Foster's case (see n. 13) as to what Life of Georgia had done to her, and the plaintiffs in both of these cases were represented by the same attorneys. By allowing punitive damages to be awarded in this case, this Court is allowing the defendant to be punished twice for the same conduct. In the oral arguments in BMW, one of the Justices inquired about just such a factual setting, suggesting that permitting a defendant to be punished by every victim might raise constitutional questions.
[16] In the present case, evidence of four incidents, including that against the plaintiff, Ms. Johnson, which could constitute evidence of pattern and practice, was presented before the jury, before the trial court in the Hammond/Green Oil review, and before this Court. However, evidence of one of these incidents was presented by Mattie Foster, the plaintiff in Foster v. Life Insurance Co. of Georgia, 656 So. 2d 333 (Ala.1994). In that case, this Court reinstated a jury award for $1 million in punitive damages against Life of Georgia.
[17] In Ellis, I opined that the trial judge had sentenced the defendant for speeding, not for possession of a radar detector.
[18] See, Kirk v. Denver Publishing Co., 818 P.2d 262 (Colo.1991). The Colorado Supreme Court held in this opinion that the statute mandating that a portion of punitive damages awards be paid to the state, Colo.Rev.Stat. § 13-21-102(4), was unconstitutional as violating the Taking Clause of the Fifth Amendment of the United States Constitution.
[19] McBride v. General Motors Corp., 737 F. Supp. 1563 (M.D.Ga.1990).
[20] See, Schenck v. Minolta Office Systems, 873 P.2d 18 (Colo.App.1993); Gordon v. State, 608 So. 2d 800 (Fla.1992).
[21] See, Massey, The Excessive Fines Clause and Punitive Damages: Some Lessons from History, 40 Vand.L.Rev. 1233 (1987); Jefferies, A Comment on the Constitutionality of Punitive Damages, 72 Va.L.Rev. 139 (1986), for a further discussion of the historical development of the Eighth Amendment.
[22] The narrowness of the holding in Browning-Ferris seems apparent from a statement made by Justice O'Connor in her concurring/dissenting opinion in that case, where she cites a Florida statute (Fla.Stat. § 768.73(2)(b), which has since been repealed by the Florida Legislature, effective July 1, 1995), which mandated that 60% of any punitive damages awarded be allocated to the state. In reference to this statute, Justice O'Connor stated:
"I also note that by relying so heavily on the distinction between governmental involvement and purely private suits, the Court suggests that the Excessive Fines Clause will place some limitations on awards of punitive damages that are recovered by a governmental entity."
492 U.S. at 298-99, 109 S. Ct. at 2932.
[23] The attorney for the plaintiff in this case argued to the jury in the Foster case, and again to the jury in this case, that Life of Georgia should be punished for selling these policies to elderly people. The question arises: How many times can a defendant be punished through exemplary damages? In BMW, the Justices, during oral arguments, made specific inquiry about the "multiplier" effect of permitting several plaintiffs to argue similar claims to separate juries. Cf., Dennis Neil Jones, et al., Multiple Punitive Damages Awards for a Single Course of Wrongful Conduct: The Need for a National Policy to Protect Due Process, 43 Ala.L.Rev. 1 (1991).
[24] Mary Lambeth is the plaintiff in a federal action based on the Alabama Wrongful Death Act. Her federal claim involves alleged asbestos exposure.
[25] Jerry Underwood, "Big Money Fight," Birmingham News, November 5, 1995, at 8A. | April 26, 1996 |
d01d7341-c0d9-473c-98c0-f8f152f9585a | Ex Parte Crawford | 686 So. 2d 196 | 1950205 | Alabama | Alabama Supreme Court | 686 So. 2d 196 (1996)
Ex parte Virgil Marinus CRAWFORD.
In re Virgil Marinus Crawford
v.
State.
1950205.
Supreme Court of Alabama.
May 31, 1996.
W. Lloyd Copeland of Clark, Deen & Copeland, P.C., Mobile, for Petitioner.
Jeff Sessions, Atty. Gen., and Rosa H. Davis, Asst. Atty. Gen., for Respondent.
INGRAM, Justice.
In the Mobile Circuit Court, Virgil Marinus Crawford was convicted in two cases of receiving stolen property. The circuit court judge was Judge Chris N. Galanos. Before the trial of his cases, Crawford made a motion for Judge Galanos to recuse, citing the fact that Judge Galanos had been the district attorney for the Thirteenth Judicial Circuit (Mobile County) when criminal proceedings were initiated against Crawford. Judge Galanos denied Crawford's recusal motion.
On appeal to the Court of Criminal Appeals, Crawford argued that Judge Galanos had erred in denying his motion to recuse. *197 In an unpublished memorandum, the Court of Criminal Appeals stated:
Crawford v. State, 683 So. 2d 66 (unpublished memorandum) (Ala.Crim.App.1995).
Crawford then petitioned this Court for certiorari review, contending that the Court of Criminal Appeals erred in holding his arguments concerning recusal to be procedurally barred from review on appeal. This Court granted certiorari review.
This Court, in several cases, has held that the writ of mandamus should be used to ensure appellate review of a recusal issue. Among those is Ex parte Balogun, 516 So. 2d 606 (Ala.1987), in which the Court stated, "This Court has long held that mandamus, not appeal, is the proper remedy if a judge refuses to recuse himself." 516 So. 2d at 608. We held the same in Ex parte Melof, 553 So. 2d 554, 555 (Ala.1989): "Mandamus is the proper method by which to review whether recusal is required." In Ex parte Kiker, 612 So. 2d 453, 455 (Ala.1993), this Court cited Melof in holding that "[a] petition for a writ of mandamus is the proper means to seek review of a ruling on a suggestion of recusal." Also citing Melof, this Court stated in Ex parte Cotton, 638 So. 2d 870, 872 (Ala. 1994), "A mandamus petition is the proper method to review the trial court's denial of a motion to recuse."
However, as Crawford points out, there is a distinct, older line of cases that appear to contradict this Court's later holdings on this issue, but which have never been overruled. In Riley v. Wilkinson, 247 Ala. 231, 240, 23 So. 2d 582, 589-90 (1945), the Court stated that "when it is thought that a judge is disqualified and refuses to recuse himself, mandamus to require him to do so is the appropriate remedy (not now to say that the ruling may not be assigned as error on appeal)." The Riley Court cited De Moville v. Merchants & Farmers Bank, 237 Ala. 347, 186 So. 704 (1939), which had held that a review of a ruling upon the qualifications of a judicial officer may be made by mandamus review or by appeal. The De Moville Court, in its opinion on an appeal in which a recusal issue was raised, stated:
237 Ala. at 352, 186 So. at 708.
Crawford further notes that the Court of Criminal Appeals, in Crumpton v. State, 677 So. 2d 814 (Ala.Crim.App.1995), reviewed on appeal the denial of a motion to recuse.[1] In Crumpton, while Judge Galanos was district attorney for the Thirteenth Judicial Circuit, the defendant Crumpton was charged with murder. Judge Galanos was assigned Crumpton's case, and, when asked to recuse, he refused. Crumpton was convicted. On appeal, the Court of Criminal Appeals reversed the conviction, holding that Judge Galanos should have recused, pursuant to the Alabama Canons of Judicial Ethics and that court's holding in Ex parte Sanders, 659 So. 2d 1036 (Ala.Crim.App.1995). In Sanders, the Court of Criminal Appeals had issued a writ of mandamus requiring Judge Galanos to recuse, for the same reasons it required recusal in Crumptonthe same *198 reasons for which Crawford seeks recusal in this case.
It is apparent that there have been discrepancies in the manner in which Alabama courts have resolved the issue of the proper manner for reviewing a trial judge's ruling on a motion to recuse. The State contends that the mandamus procedure should be the only proper method to obtain appellate review on this issue. The best argument in support of this contention is that the use of the mandamus procedure would provide review of this interlocutory ruling before the parties have spent time and money to try a case presided over by a judge who should possibly have recused.
However, we believe that to allow the recusal issue to be raised either on appeal, after having been properly preserved at trial, or in a petition for a writ of mandamus, will best serve the interests of justice. This ruling will allow us to avoid the situation where every case in which a judge's impartiality is questioned receives a piecemeal appellate review, i.e., a review of one question by mandamus petition, followed by a later appeal. As this Court has often stated, the writ of mandamus is an extraordinary writ. If a party, in its discretion, believes that the interests of justice will be best served by petitioning for a writ of mandamus immediately after the trial judge denies a motion to recuse, then the appellate court may consider that petition. However, if the party chooses to preserve the alleged error by properly objecting to the denial of the motion and then proceeds to trial, then an appellate court may review the propriety of the ruling denying a recusal, if the recusal issue is properly raised. While a mandamus petition is a proper method for obtaining appellate review on this issue, it is not the sole method for obtaining it.
We must assume that in Crumpton v. State, in which the recusal issue was presented on direct appeal, the Court of Criminal Appeals was relying on the older line of cases when it reviewed the denial of a recusal motion. The Court of Criminal Appeals' refusal in Crawford's appeal to review his arguments concerning Judge Galanos's refusal to recuse is inconsistent with its later ruling in Crumpton. We conclude that in Crawford's appeal it should have applied the reasoning it later applied in Crumpton.
We reverse the judgment of the Court of Criminal Appeals and remand for that court to consider the merits of Crawford's arguments on the recusal issue.
REVERSED AND REMANDED.
HOOPER, C.J., and ALMON, SHORES, HOUSTON, COOK, and BUTTS, JJ., concur.
KENNEDY, J., concurs in the result.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
This case involves a question whether a review of a ruling on a motion for recusal must be sought before trial or whether it can be raised on direct appeal after trial. The majority, agreeing with the defendant, holds that "[t]o allow the recusal issue to be raised either on appeal, after having been properly preserved at trial, or in a petition for a writ of mandamus, will best serve the interests of justice." 686 So. 2d at 198. This holding, in my opinion, is contrary to what this Court has previously held, i.e., that the proper method for raising the question of recusal of a trial judge is by petition for the writ of mandamus. Consequently, I must disagree with the majority's statements about the law that is applicable.
In Ex parte Balogun, 516 So. 2d 606, 608 (Ala.1987), this Court said the following:
(Emphasis added.) In that case, this Court further noted that "[a]t early common law, and prior to the adoption of the Alabama Canons of Judicial Ethics, mandamus was granted to require a judge to recuse himself...." 516 So. 2d at 609. Although the Court in Ex parte Balogun did not address what the Court meant by using the word "proper," the common definition of "proper" *199 is "correct." New Webster's Dictionary (1993). If mandamus is the correct method, how can appeal be a correct method also? I do not think that it can.
The general rule is "[i]f the facts causing disqualification are known, objection must be made before issue is joined and the trial is commenced, otherwise the accused will be deemed to have waived the objection." Sparks v. State, 450 So. 2d 188, 192 (Ala.Crim. App.1984), citing De Moville v. Merchants & Farmers Bank, 237 Ala. 347, 352, 186 So. 704 (1939). In addition, this Court has stated, "A mandamus petition is the proper method to review the trial court's denial of a motion to recuse." Ex parte Cotton, 638 So. 2d 870, 872 (Ala.1994), citing Ex parte Melof, 553 So. 2d 554 (Ala.1989).
I realize, of course, that there have been cases in which the question of recusal has been considered on appeal. Today's holding by the majority would be consistent with those cases.[2] However, in view of the requirement of our new Rules of Criminal Procedure that motions raising nonjurisdictional issues be made in the form of a pre-trial motion[3] and in view of the provisions of Rule 1.2, Ala.R.Crim.P.that the rules of practice and procedure governing criminal proceedings "are intended to provide for the just and speedy determination of every criminal proceeding" and should "be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare"I believe the proper method for reviewing a motion to recuse is by mandamus.
The defendant bases his argument upon a line of older cases that suggest that a review of a ruling upon the qualifications of a judicial officer may be made by mandamus or appeal.[4] I believe that the suggestions and holdings of those cases should be considered in view of the fact that the rules of procedure governing today's practice are quite different. I think that under our current practice review by mandamus is the proper method for reviewing a ruling on a recusal motion.
The defendant moved for recusal before trial. The trial court denied his motion, but he never attempted to get this ruling reviewed before the case was tried. I believe it is clear that he should have sought review by mandamus; consequently, I must respectfully dissent.
[1] After the release of the Court of Criminal Appeals' opinion, Crumpton petitioned this Court for a writ of certiorari concerning an unrelated evidentiary issue. This Court denied Crumpton's petition. The State did not petition for certiorari review in Crumpton.
[2] See De Moville v. Merchants & Farmers Bank, 237 Ala. 347, 186 So. 704 (1939); Crumpton v. State, 677 So. 2d 814 (Ala.Crim.App.1995) (court considered the recusal issue on appeal but did not discuss whether appeal or mandamus was the proper remedy).
[3] See, Rule 15.2, Ala.R.Crim.P. The essence of this Rule is that "[a]ll objections, except subject matter jurisdiction ... and the failure of the indictment, information, or complaint to state a charge, must be raised by a pretrial motion." Maddox, Alabama Rules of Criminal Procedure (2d ed. 1994).
[4] Riley v. Wilkinson, 247 Ala. 231, 23 So. 2d 582 (1945); De Moville v. Merchants & Farmers Bank, 237 Ala. 347, 186 So. 704 (1939). | May 31, 1996 |
931e7b8e-02c7-4093-8719-dce8e60bc08f | Independent Stave v. Bell, Richardson Etc. | 678 So. 2d 770 | 1940638 | Alabama | Alabama Supreme Court | 678 So. 2d 770 (1996)
INDEPENDENT STAVE COMPANY, INC.
v.
BELL, RICHARDSON AND SPARKMAN, P.A., et al.
1940638.
Supreme Court of Alabama.
May 10, 1996.
*771 Clarence L. McDorman, Jr., Birmingham, for Appellant.
Bert S. Nettles, Mark D. Hess and Laura E. Proctor of London & Yancey, Birmingham, for Appellees.
PER CURIAM.
The plaintiff appeals from a summary judgment entered for the defendants in a legal malpractice action based on the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975. Independent Stave Company, Inc., retained the defendants to file proof of its claim against the bankrupt estate in In re: David Shelby Lanier, III and Lou Ann Lanier, Debtor, Case No. 89-11485, pending in the United States Bankruptcy Court for the Northern District of Alabama. Independent Stave alleged that the defendants negligently failed to file timely proof of its claim and thereby caused Independent Stave to be barred from recovering $426,000 from the bankrupt estate of David and Lou Ann Lanier. In addition, Independent Steve seeks damages based on expenses incurred in its failed attempt in the bankruptcy court to remedy the alleged negligence.
Although the defendants entered a timely appearance in the bankruptcy proceedings and, simultaneously, filed a motion seeking a valuation of property owned by the bankrupt estate, the bankruptcy court held that this did not constitute a timely proof of claim against the estate. The court denied subsequent efforts by other counsel on behalf of Independent Stave to have the court reconsider this ruling.
In this malpractice action, the circuit court held:
*772 Independent Stave is not the only creditor with unpaid claims against the bankrupt estate of David and Lou Ann Lanier. The Internal Revenue Service has a tax lien against the Laniers for approximately $680,000. To date, it is unsatisfied. In addition to the federal tax lien, the amended disclosure statement filed with the bankruptcy court, in 1990, identifies at least nine secured creditors with claims totaling approximately $5,000,000. In the nearly five years between the Laniers' filing for bankruptcy and the entry of the summary judgment in this case, none of the creditors, including the Federal Government, had been paid. To that extent, the bankruptcy court's mention of possible payments to creditors based on the future sale of 11 acres of land for approximately $1,200,000, is, for the most part, inconsequential to Independent Stave's claim against the Laniers because of the enormous debt owed by the Laniers to the Federal Government and the secured creditors. See the court's order denying Independent Stave's motion to reconsider in In re: David Shelby Lanier, III and Lou Ann Lanier, Debtor, Case No. 89-11485 (Bankr.N.D., Ala., Mar. 23, 1994).
This Court has recognized the following principles relating to a legal malpractice action:
McDuffie v. Brinkley, Ford, Chestnut & Aldridge, 576 So. 2d 198, 199-200 (Ala.1991). See also Herring v. Parkman, 631 So. 2d 996 (Ala.1994); Boros v. Baxley, 621 So. 2d 240 (Ala.1993), cert. denied, 510 U.S. 997, 114 S. Ct. 563, 126 L. Ed. 2d 463 (1993); Cribbs v. Shotts, 599 So. 2d 17, 19 (Ala.1992), cited in the circuit court's order, quoted above.
Here, the parties do not dispute the fact that Independent Stave would have been a general unsecured creditor had the defendants properly filed a proof of claim with the bankruptcy court. 11 U.S.C. § 507 (1988). In fact, Independent Stave admits in its brief that it "cannot prove at this time that there will be any monies available to the unsecured creditors in the bankruptcy proceeding." With a total of approximately $6,000,000 owed to the Federal Government and the other secured creditors, it does not appear from the record that Independent Stave would have been in a position to recover any of its claim had proof been filed in a timely fashion by the defendants. Because Independent Stave would not have been in a position to recover any of its claim had timely proof been filed, its argument that it is entitled to damages based on attorney fees incurred after the alleged malpractice must fail. To prevail on the claim for attorney fees, Independent Stave would have to prove that it would have recovered on the underlying action. See Ex parte Burnham, Klinefelter, Halsey, Jones & Cater, P.C., 674 So. 2d 1287 (Ala.1995).
Independent Stave did not present substantial evidence establishing that but for the defendants' negligence it would have recovered in the underlying action. Thus, the defendants' summary judgment is due to be affirmed.
AFFIRMED.
HOOPER, C.J., and ALMON, HOUSTON, INGRAM, and BUTTS, JJ., concur. | May 10, 1996 |
7fc27af2-8dc8-43f4-a70e-0495e2cde2ef | Uniroyal Goodrich Tire Co. v. Hall | 681 So. 2d 126 | 1921945 | Alabama | Alabama Supreme Court | 681 So. 2d 126 (1996)
UNIROYAL GOODRICH TIRE COMPANY
v.
Jackie Darryl HALL.
1921945.
Supreme Court of Alabama.
May 3, 1996.
Rehearing Denied September 6, 1996.
G. Rick Hall of Bradley, Arant, Rose & White, Huntsville, for Appellant.
K. Rick Alvis and Roger L. Lucas of Lucas, Alvis, Kirby & Wash, P.C., Birmingham, for Appellee.
PER CURIAM.
Uniroyal Goodrich Tire Company appeals from a judgment awarding Jackie Darryl Hall $1,025,000 in compensatory damages on Hall's claim that he was injured as a result of an explosive rupture of a tire manufactured by B.F. Goodrich Company. We reverse and remand.
On August 8, 1991, Jackie Darryl Hall and several co-workers were using a gooseneck trailer to haul cattle; the trailer experienced a blowout of one of the trailer tires. They drove a short distance to a shop, where they removed the tire and attempted to replace it with a 16-inch light truck tire. It is undisputed that the wheel rim, manufactured by the Budd Company and distributed by Ford Motor Company, did not have its size stamped on it; however, it was a 16.5-inch wheel rim. A 16-inch tire should be mounted on a 16-inch wheel rim. An attempt to *127 mount a tire of one size onto a wheel rim of a different size is known in the industry as a "mismatch." Not knowing that the wheel and rim were different sizes, Hall attempted to mount the mismatched tire onto the rim; the tire exploded. The tire had the following warning on the sidewall:
Apparently, upon inflating the tire, two or three inches of the tire "would not `pop out' or `bead out' against the flange of the wheel." Appellant's brief, page 9.
Appellant's brief, page 9. (Citations to the record omitted.) More air was added to the tire. The tire exploded, causing substantial injury to the plaintiff's left leg and left arm.
Hall sued the manufacturer of the wheel rim, the Budd Company; the distributor of the wheel rim, Ford Motor Company; and the tire manufacturer, B.F. Goodrich Company, alleging negligence and wantonness and claiming liability under the Alabama Extended Manufacturer's Liability Doctrine. He later amended his complaint to add as defendants Steve Worscham, individually and d/b/a/ B & S Grocery, the operator of the shop where the accident occurred. The trial court entered a summary judgment in favor of Worscham. Budd and Ford Motor Company settled with Hall for $450,000, and they are not parties to this appeal. The jury returned a verdict against B.F. Goodrich in the amount of $825,000. Pursuant to a pretrial agreement between the parties relating to several evidentiary and set-off issues, the trial court increased the award by $200,000, to $1,025,000.[1]
B.F. Goodrich appealed from the resulting judgment. It contends that the trial court erred in charging the jury that contributory negligence was not a defense to Hall's AEMLD claim. We agree. Because that error requires that we reverse and remand, we pretermit discussion of the appellant's other arguments.
The trial judge charged the jury as follows:
R.T. at 852. Later, the trial judge stated:
R.T. at 853-55; 859-61.
After the judge charged the jury, counsel for B.F. Goodrich objected, as follows:
R.T. at 890-91.
The plaintiff contends that the jury instructions on assumption of the risk and on product misuse encompassed the defense of contributory negligence, even though the jury was specifically charged that contributory negligence was not an available defense to the plaintiff's AEMLD claim. A similar argument was addressed by this Court in General Motors Corp. v. Saint, 646 So. 2d 564 (Ala.1994), and rejected. In Saint, we addressed the argument that a jury charge on product misuse basically constituted a charge on contributory negligence. We said:
General Motors Corp. v. Saint, 646 So. 2d at 567-68.[2]
The distinctions between contributory negligence, assumption of the risk, and product misuse were discussed in Justice Ingram's dissenting opinion in Campbell v. Cutler Hammer, Inc., 646 So. 2d 573 (Ala.1994), wherein he expressed the view that contributory negligence should not be a defense to an AEMLD claim. While his views on that point differed from that of the majority, for definitional purposes his dissent is instructive. He stated:
646 So. 2d 573, 577 (Ingram, J., dissenting). In examining the differences between contributory negligence and product misuse and then the differences between assumption of the risk and contributory negligence, Justice Ingram stated:
646 So. 2d at 577 (Ingram, J., dissenting).
For the foregoing reasons, we hold that the trial judge erred in failing to charge the jury that contributory negligence was a defense to the plaintiff's AEMLD claim.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, and SHORES, JJ., concur.
ALMON and HOUSTON, JJ., concur in the result.
KENNEDY, COOK, and BUTTS, JJ., dissent.
HOUSTON, Justice (concurring in the result.)
I concur in the result. I would reverse and remand on the authority of the majority opinions in General Motors Corp. v. Saint, 646 So. 2d 564 (Ala.1994), and Campbell v. Cutler Hammer, Inc., 646 So. 2d 573 (Ala. 1994).
COOK, Justice (dissenting).
I dissented in General Motors Corp. v. Saint, 646 So. 2d 564 (Ala.1994), and in Campbell v. Cutler Hammer, Inc., 646 So. 2d 573 (Ala.1994), because I was convinced that in those cases the majority of the Court "misapprehende[d] the rules set forth in Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976), and Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976)." Campbell v. Cutler Hammer, Inc., 646 So. 2d at 578, citing General Motors Corp. v. Saint, supra. I continue to remain staunch in my view that Atkins and Casrell "established only two affirmative defenses that relate to the plaintiff's conduct, namely, (1) assumption of the risk, and (2) product misuse alias contributory negligence." Campbell v. Cutler Hammer, Inc., 646 So. 2d at 578, citing my dissent in Saint. For a complete explanation of my views with regard to this issue, see my dissents in those cases. For the reasons set forth therein, I, again, respectfully dissent.
[1] Before the trial, B.F. Goodrich had agreed that the jury would be told about the pro tanto settlement with Budd and Ford and that it would give up $200,000 of its right to set-off. Other evidentiary matters were also listed in the agreement.
[2] We note that this case was tried before the Saint opinion was released. | May 3, 1996 |
39473ab0-66eb-4efc-aebc-38e2d07daaa0 | Ex Parte Land | 678 So. 2d 224 | 1940896 | Alabama | Alabama Supreme Court | 678 So. 2d 224 (1996)
Ex parte Michael Jeffrey LAND.
(In re Michael Jeffrey Land v. State).
1940896.
Supreme Court of Alabama.
March 1, 1996.
Opinion Overruling Application for Rehearing May 17, 1996.
*228 Joseph T. Flood, Rochester, NY, for petitioner.
Jeff Sessions, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for Respondent.
BUTTS, Justice.
Michael Jeffrey Land was convicted of the capital murder of Candace Brown, and the trial judge sentenced him to death, following the jury's recommendation of that sentence. The Court of Criminal Appeals affirmed both his conviction and his death sentence. Land v. State, 678 So. 2d 201 (Ala.Cr.App.1995). On certiorari review, we affirm the judgment of the Court of Criminal Appeals.
On the evening of May 18, 1992, Candace Brown drove to her mother's home to pick up her two-year-old son. Because Ms. Brown's residence had been burglarized five days earlier, her mother and brother followed her home to make sure the house was safe. Ms. Brown's mother and brother left the house at approximately 9:00 p.m.
The following morning, May 19, Ms. Brown's landlord went to her residence to supervise the installation of a fence. The landlord observed that a window located near the rear entry to the house had been broken into, that the telephone wires to the house had been cut, and that the window on the driver's side of Ms. Brown's car had been shattered. After knocking on the front door and receiving no response, the landlord asked a neighbor to call the police and then returned to his own home in order to get a spare set of keys to Ms. Brown's house.
When officers from the Birmingham Police Department arrived at Ms. Brown's residence, they established that all doors to the house were locked, that a storm window located near a rear entry to the house had been removed, and that several panes of the interior window behind that storm window had been cut and removed. They saw on one of the removed panes of glass, which was lying on the ground, a shoe imprint with a distinctive tread design bearing the lettering "USA."
The landlord opened the house for the police officers, who found Ms. Brown's infant son alone and unharmed. The officers also found on a bulletin board a note with the name and telephone numbers of Michael Jeffrey Land and his mother, Gail M. Land.
After telephoning Ms. Land and learning from her where her son Jeffrey was working, Detectives Steve Corvin and Larry Fowler went to Riverchase Galleria, a shopping mall in Hoover, where Jeffrey Land was repairing the roof of the mall. The detectives informed Land that they were investigating the disappearance of Ms. Brown, and he agreed to accompany them to the police station to answer some questions. He was taken to an interrogation room and informed of his rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He signed a waiver of rights form and agreed to have his statement tape-recorded.
Land acknowledged in the tape-recorded statement that he knew Ms. Brown, but said that he had not seen her in about a week, that he had no idea where she was, and that he had no knowledge about the most recent break-in at her residence. However, Land later confessed that he had burglarized Ms. Brown's residence six days earlier and that during the course of that burglary he had cut the exterior telephone lines.
*229 When the detectives inquired as to where he had been the night before, i.e., May 18, Land claimed that he had been visiting a girlfriend at her parents' apartment until approximately 11:30 p.m. Land said that after he left the apartment he fell asleep in his car in the parking lot at the apartments and that he awoke at approximately 4:15 a.m., May 19, and drove to his grandfather's house; he said he lived there with his grandfather. Land claimed that he reported to work at the Galleria before 6:00 a.m. that morning, that he had eaten lunch earlier that day with a second girlfriend, and that his car was parked at that second girlfriend's house.
During the interrogation, Detective Fowler noticed that the tread design on the bottom of Land's tennis shoes appeared to match the print the officers had seen on the window glass at Ms. Brown's house. At the completion of Land's interview, Detective Fowler asked to see Land's shoes and, upon closer observation, noticed what appeared to be bloodstains. The detectives asked Land to removes his shoes and clothes, and they gave him a jail uniform to wear.[1] Meanwhile, Birmingham Police Lieutenant Carl Quinn telephoned Land's second girlfriend, who denied having eaten lunch with him that day and also stated that Land's car was not parked at her home.
After Lt. Quinn relayed that information to Detectives Fowler and Corvin, Corvin informed Land that his second girlfriend had denied eating lunch with him and had denied having his car. Detective Corvin then told Land that he needed to tell the truth about the disappearance of Ms. Brown. Confronted with this discrepancy in his statement, Land then agreed to make a second statement, but refused to allow it to be tape-recorded.
Once again, Land was informed of, and waived, his Miranda rights. In his second statement, Land stated that he had met two men, whom he named "Tony" and "Edward," at a gas station late the previous night and that these men had asked him if he knew an "easy mark" for a burglary. Land stated that he suggested Ms. Brown's house and that Tony and Edward had paid him $20 to cut and remove the glass to a window in Ms. Brown's house. Land said that the three of them entered the kitchen through this window.
Land said that after they entered the house Ms. Brown walked into the kitchen, where the three men were, and that either Tony or Edward slapped her, knocking her to the floor and causing her nose and mouth to bleed. According to Land, as Ms. Brown fell, she grabbed his hand and, he said, in doing so she may have gotten some blood on his gloves. When Detective Corvin told Land that no trace of blood was found in Ms. Brown's house, Land said that either Tony or Edward had cleaned the blood up with paper towels and then had placed the towels in his pants pocket. Land said that after Ms. Brown was injured he became frightened and left the house and that he did not know what happened to her after that.
In this second interview, Land admitted that his car was not parked at a girlfriend's house, but was instead parked in the parking deck at the mall where he had been working. When told by Detective Corvin that the police would need to look in his car, Land asked what would happen if they found something in his car that he was not supposed to have. Detective Corvin told Land that they were looking for evidence concerning Ms. Brown's disappearance and asked Land if he was referring to drugs. Land answered that he had a .45 caliber automatic handgun in his car and would consent to a search of the car only if the police agreed not to charge him with carrying a gun. Without agreeing to Land's conditions, Detective Corvin asked Land for his car keys. Land handed the keys to the detective.
Detective Fowler located Land's car, opened the trunk, and made a visual inventory of the trunk, without moving or touching the contents. He saw a .45 caliber semi-automatic handgun in the trunk, but did not seize it. Instead, the police had the car towed to a secure lot; it was searched two days later pursuant to a valid search warrant.
*230 On the evening of May 19, after completing his second statement, Land was informed that he was under arrest. The next day, May 20, Ms. Brown's body was discovered by hikers in a rock quarry on Ruffner Mountain in Jefferson County. She had been shot once in the back of her head. Land was charged with capital murder.
At trial, the State's expert testimony showed that a pair of wire cutters found during the search of Land's car had made the cuts on the telephone wire leading into Ms. Brown's residence; that two types of glass fragments found on a pair of gloves seized from Land's car were consistent with the glass in the shattered window of Ms. Brown's car and with the glass in the broken window near the rear entry of Ms. Brown's house; that Land's tennis shoe sole had the same distinctive design as the shoe print found on a removed pane of glass at Ms. Brown's house; that the bullet recovered from Ms. Brown's head had been fired from a .45 caliber handgun and that it matched a bullet test-fired from the .45 caliber handgun found in Land's car; and that a DNA profile of a semen stain found on Ms. Brown's blouse matched Land's known blood sample, and that only one in 20,620,000 white males would have those same DNA characteristics (Land is white).
Land was convicted of two counts of capital murder for the death of Ms. Brown. The jury found him guilty of murder during a burglary, Ala.Code 1975, § 13A-5-40(a)(4), and guilty of murder during a kidnapping, Ala.Code 1975, § 13A-5-40(a)(1). By a vote of 11-1, the jury recommended that he be sentenced to death. The trial court followed the jury's recommendation and sentenced Land to die in the electric chair.
Land has raised for this Court's review 23 issues, some of which were also raised before the Court of Criminal Appeals and discussed in that court's lengthy opinion. We have thoroughly reviewed the issues raised before the Court of Criminal Appeals, and we find no error in the opinion of that court. We have also thoroughly reviewed the additional issues Land has raised for the first time before this Court and have found no reversible error. Moreover, we have carefully reviewed the record for "plain error," in accordance with Rule 39(k), Ala.R.App.P., and have found none. We discuss here the issues that Land did not raise before the Court of Criminal Appeals, and also 2 issues that were raised in that court, but which Land's appellate counsel emphasized in oral argument before this Court.
At oral argument, Land argued, through counsel, that his conviction should be reversed and that he should be given a new trial because, he says, the prosecutor impermissibly commented to the jury regarding his failure to testify. The prosecutor's comments he complains of were made during rebuttal closing argument of the guilt phase of the trial.
In the prosecutor's argument, the court reporter did not provide quotation marks on those portions of the prosecutor's statement that were obviously intended as representations of what various persons had said. In our quotation of the prosecutor's argument here, we have added those quotation marks. The prosecutor stated:
Land argues that the first emphasized statement in this quotation of the prosecutor's argument beckoned Land to tell the truth and that the statement was a direct comment by the prosecutor on Land's right not to testify. He argues that, at a minimum, the jury could have understood this statement to be a comment upon Land's failure to testify. He argues that the second emphasized statement of the prosecutor was a comment on Land's failure to testify because, he argues, it suggests that through his attorneys Land could continue to lie without taking the stand.
Further, Land contends that the second comment adversely colors the first because, he says, it demonstrates that with the first comment the prosecutor was not referring to Land's recorded statement. Rather, Land argues, the prosecutor was highlighting the fact that Land did not testify and was suggesting that he was lying to the jury though his attorneys and was thereby inviting the jury to infer that Land was guilty. Finally, Land argues that because the prosecutor made two separate comments regarding Land's silence, it increased the probability that the jury would understand the remarks to constitute a comment on Land's failure to testify.
In response, the State contends that when the first emphasized comment is viewed in the context of this particular trial and in light of the full text of the prosecutor's closing argument, it is clear that the prosecutor was referring to the confession given by Land, which was part of the evidence at trial. In other words, the State argues that the remark was not a comment on Land's failure to testify, but was instead a comment on Land's failure to tell the truth in his statement to the police. The State argues that the second statement at issue was merely a continuation of the first and was a permissible reply-in-kind argument directed to defense counsel's earlier statements.
In Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), the United States Supreme Court held that a state prosecutor's direct comment on an accused's failure to testify violates the accused's rights under the Fifth and Fourteenth Amendments to the United States Constitution. Under this standard, "a statement by a prosecutor is improper if it was manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the failure of the accused to testify." Marsden v. Moore, 847 F.2d 1536, 1547 (11th Cir.), cert. denied, 488 U.S. 983, 109 S. Ct. 534, 102 L. Ed. 2d 566 (1988). This Court has also ruled that "where there is the possibility that a prosecutor's comment could be understood by the jury as a reference to failure of defendant to testify, § 6 [Alabama Constitution of 1901] is violated." Beecher v. State, 294 Ala. 674, 682, 320 So. 2d 727, 734 (1975).
As noted by the State, Land failed to object to either of these comments and, thus, failed to preserve for appellate review the issues he now raises. However, because this is a case where the death penalty has been imposed, this Court will, pursuant to Rule 39(k), Ala.R.App.P., notice any "plain error," regardless of whether an objection was made before the trial court. Plain error is error that "has or probably has adversely affected the substantial rights of the petitioner." Rule 39(k). "In other words, the plain-error exception to the contemporaneous objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, n. 14, 102 S. Ct. 1584, 1592, n. 14, 71 L. Ed. 2d 816 (1982).
We further note that "[w]hen an accused contends that a prosecutor has made improper comments during a closing argument, the statements at issue must be viewed in the context of the evidence presented in the case and the entire closing argument made to the juryboth defense counsel's and *233 the prosecutor's." Ex parte Musgrove, 638 So. 2d 1360, 1368 (Ala.1993), cert. denied, Rogers v. Alabama, ___ U.S. ___, 115 S. Ct. 136, 130 L. Ed. 2d 78 (1994).
1. "Jeff tell us the truth, tell us the truth."
The Court of Criminal Appeals addressed the issue whether the prosecutor's use of these words violated Land's constitutional rights, and that court found no error, plain or otherwise. That court held there was no chance that the jury could have understood the comment to be a reference to Land's failure to testify. Land, 678 So. 2d at 218.
We agree. In the first part of the prosecutor's rebuttal closing, he simply quoted or paraphrased statements Land had made to the police and statements the police had made to Land while he was being interrogated. It is clear that the prosecutor's discourse was nothing more than a "story" of the evidence told to the jury by the prosecutor's switching back and forth, speaking as Land, as the police, as a witness, and as the prosecutor himself.
The Court of Criminal Appeals correctly held that "the remark was not a comment on the appellant's failure to testify, but a comment on the appellant's failure to tell the truth in his statement to the police." Land, 678 So. 2d at 217. In the context of the prosecutor's entire closing statement, the jury could not have construed the words "Jeff tell us the truth, tell us the truth," to be anything other than a narration of what the police had said to Land when his initial statement conflicted with known facts. There was no error in the prosecutor's use of those words.
"These words, also part of the prosecutor's rebuttal closing argument, followed his discussion of various statements that Land's counsel had made during closing argument. Land's counsel had attacked the credibility of the evidence presented by the State's expert witnesses, including testimony regarding the tennis-shoe "footprint" similar to Land's found on a pane of glass, the procedure used to compare the cut made by Land's wire cutters to the cut made on the telephone wire, the procedures used to analyze evidence for a blood type and DNA match, the match of a bullet fired from Land's gun to the bullet retrieved from the victim's body, and the match of two types of glass found on Land's gloves with the window glass in the victim's car and house.
We disapprove of a statement by a prosecutor referring the jury to the fact that the defendant spoke through his attorneys, i.e., that he did not speak for himself. Thus, if Land's counsel had made a contemporaneous objection to this statement, and we were to apply the Beecher standard explained above, we might have held the comment to be reversible error. This is true even though it is clear to this Court that, when viewed in the context of the confrontational nature of closing arguments, the prosecutor's comment was intended as a "reply in kind" to the argument made by Land's counsel.
However, the comment was not objected to during trial. Thus, the statement may be considered only by the standard of the plain error rule. Under that standard, given the evidence presented in this case, we find no plain error in the prosecutor's statement.[2]
Land argues that his rights guaranteed under the Fifth, Sixth, Eighth, and Fourteen Amendments to the United States Constitution, and similar rights guaranteed under Alabama law, were violated when, he says, *234 the trial court failed to correct what he calls a juror's misunderstanding about the presumption of innocence and the juror's responsibility for recommending a punishment. At the close of the guilt phase of the trial, the judge informed both defense counsel and the prosecution that he had received an anonymous note from the jury during defense counsel's closing argument.
The trial court informed the attorneys for both sides that it had decided that Juror C. had written the note. Defense counsel agreed to have Juror C. removed from the panel and replaced by alternate Juror S.
Land now points out that although the note was signed "juror," it included the plural terms "us," "our," and "we," and he argues that this fact suggests that its contents actually represented the view of the jury as a whole. Land contends that the text of the note evidences a misunderstandingthat the jury is not responsible for recommending a punishmentand also suggests that the jury may have prematurely concluded that he was guilty. Land now asserts that, at a minimum, the trial court was obligated to poll the jury or to allow defense counsel an opportunity to ascertain whether there existed juror bias.
In response, the State argues that there was no error, because, it says, the trial court *235 properly instructed the jury on the presumption of innocence, the reasonable doubt standard, and the jury's role in sentencing, and the State says the judge alleviated any possible prejudice to Land by replacing Juror C. with an alternate. The State contends that Land's argument based on the use of the plurals "we" and "us" is unfounded because the note was signed with the singular noun "juror." It also argues that Land presented no proof that the note represented the feelings of more than the one juror that was replaced.
We find no error in the actions of the trial court. A trial court has considerable discretion in determining the scope of the inquiry required when there is an irregularity involving a juror or the jury. See Johnson v. State, 620 So. 2d 679 (Ala.Cr.App.1992), reversed on other grounds, 620 So. 2d 709 (Ala.1992), cert. denied, 510 U.S. 905, 114 S. Ct. 285, 126 L. Ed. 2d 235 (1993), and Sistrunk v. State, 596 So. 2d 644 (Ala.Cr.App. 1992). The record reveals that there was no doubt in the minds of the trial judge, the prosecutors, defense counsel, or the defendant that Juror C. had written the note. Not only did Land's counsel not object to the trial court's actions, they specifically requested that the judge, to remedy the problem, only replace Juror C. Moreover, because Land did not object to the trial court's action, this issue is reviewable only under the plain error standard. Clearly, the trial court did not commit plain error.
Land argues that his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and similar rights guaranteed by Alabama law, were violated when, he says, the prosecutor used prejudicial victim impact evidence during the guilt phase of the trial. Before trial, Land's counsel asked the court to prohibit the State from introducing evidence regarding the condition in which the police found Ms. Brown's two-year-old son following her disappearance. The grounds for this motion was the argument that that evidence would likely inflame the emotions of the jury. The trial court reserved its ruling on the motion until trial, but after the trial began it never ruled on the motion.
According to Land, the prosecution learned during voir dire examination of prospective jurors that those prospective jurors who had some memory of news media accounts of Ms. Brown's murder recalled that her infant son had been with her in the house. Land argues that during opening statements the prosecutor then focused on Ms. Brown's infant son by suggesting that he was the last person to see his mother alive and by informing the jury that he had been left alone in the house when his mother was abducted from the house. Land argues that during the guilt phase of the trial the prosecutor elicited references to the child from several witnesses, and that in closing statements he emphasized the suggestion that Ms. Brown had sacrificed her life to keep her son alive.
Land also contends that the prosecutor improperly introduced evidence regarding the impact Ms. Brown's death had upon her family and then, during closing arguments, commented several times on the family's loss. Land contends that this evidence should have been excluded because, he says, its prejudicial effect far outweighed any probative value it may have had.
In response, the State argues that there was no error in the prosecution's questioning of those prospective jurors that remembered the crime, and that any questioning regarding the presence of the victim's son was not for the purpose of gathering victim impact evidence, but was merely a part of the general questioning of the venirepersons to ascertain whether any of them had prior knowledge and fixed opinions about the case. The State argues that the prosecution's opening statement telling the jury about the fact that the child had been left alone in the house was not improper because that was a fact the prosecutor expected the evidence would show, or, the State says, was a crucial part of the res gestae or chain of events in Ms. Brown's death. Further, the State contends that any questioning of witnesses regarding the child was not improper or was at most merely harmless error. The State argues that any mention of the victim's child by the *236 prosecution during closing arguments of the guilt phase was to state a legitimate inference derived from the evidence and was, therefore, proper. Again, the State argues that, at most, the comments about the child were harmless error. The State also says that Land did not object to any references to the child during opening arguments, questioning of witnesses, or closing arguments.
The State argues that any comment or questioning by the prosecution regarding the effect of Ms. Brown's death on her family did not have an impact on the fairness of Land's trial. It also says that Land did not object to the comments or questioning. The State contends that, at most, the prosecution's action was only harmless error.
Recently, this Court examined the issue of victim impact evidence in Ex parte Rieber, [Ms. 1940271, May 19, 1995] 663 So. 2d 999 (Ala.1995). In Rieber, we acknowledged that testimony regarding a murder victim's children was not relevant to the issue of the accused's guilt or innocence and was, thus, inadmissible during the guilt phase of trial; we noted, however, that "a judgment of conviction can be upheld if the record conclusively shows that the admission of the victim impact evidence during the guilt phase of the trial did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant." 663 So. 2d at 1005. After thoroughly reviewing the record of this present case, we conclude that the limited testimony regarding Ms. Brown's infant son and the impact of Ms. Brown's death on her family, and the prosecution's limited references to such evidence, did not operate to deny Land a fair trial or to prejudice his substantial rights. Thus, we find no reversible error as to this issue.
Relying on Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), and Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), Land argued to this Court at oral argument that he should receive a new sentencing hearing because the trial judge stated that he had read and considered several letters written to him by the victim's family and friends. Land contends that the letters, which expressed the writers' opinions regarding Land, the crime, and the appropriate punishment, prejudiced the judge against him, prevented him from receiving a fair sentencing hearing, and violated his Eighth Amendment rights.
In response, the State agrees that the law prohibits a trial court from considering victim impact evidence regarding characterizations of the defendant, the crime, or appropriate punishment. However, the State's position is that although the trial judge did read the letters that are now at issue, he did not improperly "consider" them during the process of determining Land's sentence. The State asserts that the trial judge was an experienced judge and was well aware of the law regarding what factors he could consider in determining Land's sentence and was capable of sorting out and using only the information he could properly consider under the law.
Because Land failed to make a contemporaneous objection during his sentencing hearing when the trial judge stated that he had read the letters from Ms. Brown's family and friends, we review this issue under the plain error standard.
The trial judge stated the following during the sentencing hearing:
In Ex parte McWilliams, 640 So. 2d 1015 (Ala.1993), this Court directed a new sentencing hearing where the record did not reveal whether the trial judge, in imposing the death sentence on the defendant, had improperly considered certain portions of victim-impact statements that contained the type of information involved in this case. In contrast, the record in this case indicates to this Court that the trial court determined Land's sentence in a manner consistent with the procedure established by §§ 13A-5-47 to -52. The record indicates that the trial court reviewed the letters at issue, both those written by the victim's family and those written by Land's family, out of a respect for the families and for the limited purpose of possibly establishing a mitigating factor under § 13A-5-51 to be weighed in Land's favor at trial. We find no plain error in the actions of the trial court.
Land next argues that his conviction under count one of his indictment must be reversed because, he says, the State failed to introduce sufficient evidence by which a rational jury could conclude that he was guilty on that count. Count one charged Land, pursuant to Ala.Code 1975, § 13A-5-40(a)(4), with the intentional killing of Candace Brown in the course of a first or second degree burglary. Land contends that the State introduced no evidence that he intended to commit a theft when he entered Ms. Brown's home and, thus, he argues that the trial court erred in denying his motion for a judgment of acquittal on that count. Relying on Coulter v. State, 438 So. 2d 336 (Ala.Cr.App.1982), judgment affirmed, Ex parte Coulter, 438 So. 2d 352 (Ala.1983), denial of habeas corpus affirmed, Coulter v. Herring, 60 F.3d 1499 (11th Cir.Ala.1995), he also argues that no proof of intent to commit a theft was put before the jury, so that the aggravating factor that the murder was committed while the defendant was engaged in a burglary, listed in Ala.Code 1975, § 13A-5-49(4), should not have been used in the determination of his sentence. Land contends that he should receive a new sentencing hearing.
In response, the State argues that it presented evidence that, when Land broke into Ms. Brown's home, he clearly intended to commit a theft therein. The State notes that it presented in evidence Land's statement to the police in which he said that when he met Tony and Edward they discussed "doing a burglary" and in which Land said he told them "he knew an easy mark." In that statement Land said he drove to Ms. Brown's home, broke a window, and entered through that window, planning to commit a theft, but was interrupted by Ms. Brown. The State contends that that evidence was sufficient to support a jury's finding that, when Land broke into Ms. Brown's home, he intended to commit a theft.
In Ex parte G.G., 601 So. 2d 890, 892 (Ala.1992), we stated: "In order to defeat a defendant's motion for judgment of acquittal, the State must prove, by substantial evidence, the elements of the charge and the defendant's guilt beyond a reasonable doubt." However, an appellate court will review the evidence in a light most favorable to the prosecution. Breckenridge v. State, 628 *238 So. 2d 1012 (Ala.Cr.App.1993). Moreover, a conviction will not be set aside because of an alleged insufficiency of the evidence unless the preponderance of the evidence against the verdict is so decisive as to clearly convince the appellate court that the verdict is unjust. Id.
In this case, given Land's statement to the police regarding his "break-in" into Ms. Brown's house, we conclude that the State presented substantial evidence that Land intended to commit a theft therein. Thus, the trial court did not err in denying Land's motion for a judgment of acquittal on the first count of his indictment. Given that ruling, we need not address Land's second contention, that he should receive a new sentencing hearing.
Land argues that the "fruits" of his arrest, including his first statement and the evidence obtained from his car, were improperly admitted into evidence. He contends that when the police arrested him, without an arrest warrant, they did not have probable cause to do so. Thus, he argues, the statement and other evidence were "fruit of the poison tree" and admission of the evidence violated his rights guaranteed under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and rights guaranteed under the Alabama Constitution. Land claims that he was "under arrest" when the police took his shoes and clothes and gave him a jail uniform to wear because at that time, he says, he was no longer free to leave the police station.
He asserts that his arrest was made without probable cause because, he says, under the totality of the circumstances there was not a fair probability that he had committed a crime. He contends that all the police knew about the crime at that time was that there had been a burglary at Ms. Brown's house, that she had disappeared, that his name and telephone number had been found on a bulletin board in the house, and that he appeared to have blood spatters on his shoes. Land points out that the police also knew at that time that he had been cooperative with their investigation of Ms. Brown's disappearance, had given a voluntary statement, and had accounted for his whereabouts at the time she had disappeared. Land argues that although the police later obtained additional incriminating evidence against him, that fact does not validate what he says was an illegal arrest. As noted above, Land argues that the fruits of his arrest were not admissible and that his conviction, based on that evidence, should be reversed.
The State agrees that Land was under arrest, though not formally, when the police took his clothes and shoes. However, the State argues that Land's arrest was supported by probable cause, pointing to such evidence as the fact that Land's telephone number was found in Ms. Brown's house, that Land had admitted to cutting the telephone line and breaking into Ms. Brown's house a week before her murder, that his story about having lunch that day with his second girlfriend and leaving his car at her house was not true, that Land was wearing tennis shoes with a "USA" tread design that appeared similar to a shoe print on a piece of glass that had been removed from Ms. Brown's house, and that he appeared to have blood spatters on his shoes.
Ala.Code 1975, § 15-10-3(a)(3), states that a police officer may arrest a person without a warrant "[w]hen a felony has been committed and the officer has reasonable cause to believe that the person arrested committed the felony." An officer has reasonable, or probable, cause to make an arrest "when, at the time the arrest is made, the facts and circumstances within his knowledge, and of which he has reasonably trustworthy information, are sufficient to lead a prudent person to believe that the suspect is committing or has committed an offense." Gord v. State, 475 So. 2d 900, 902-03 (Ala.Cr. App.1985). See Manning v. State, 568 So. 2d 327 (Ala.Cr.App.1990), and Brannon v. State, 549 So. 2d 532 (Ala.Cr.App.1989). Thus, a warrantless arrest is not legal if it is supported only by a suspicion in the officer's mind that the person has committed an offense. Brannon, supra. Evidence seized pursuant to a warrantless arrest not supported by probable cause is inadmissible, and *239 a conviction based on that evidence must be reversed. Id.
Land and the State disagree as to whether the police were aware, when they arrested Land, that the tread design on his tennis shoe was similar to the print on the pane of glass that had been removed from Ms. Brown's house. However, even if the police were unaware of that particular connection of Land to the crime, we conclude that Land's arrest was amply supported by probable cause. The trial court did not err in admitting the evidence seized pursuant to Land's warrantless arrest.
At oral argument, Land argued to this Court that his cross-examination of Detective Fowler was improperly curtailed when the trial court would not allow him to question Fowler about the contents of an internal police memorandum outlining an anonymous tip that two persons other than Land may have been involved in Ms. Brown's murder. Land contends that the police were overly zealous in their investigation of him and that they failed to conduct a thorough investigation of other potential suspects. He now argues that the memorandum was admissible under the "public records exception" to the hearsay rule, relying on Grantham v. State, 580 So. 2d 53 (Ala.Cr.App.1991),[3] and, thus, he asserts that he should have been allowed to further cross-examine Fowler on the question whether there were other possible suspects. Land asserts that the trial court committed reversible error in limiting the scope of his cross-examination of Fowler because, he says, it prevented him from fully developing his defense and infringed upon his right to confront witnesses testifying against him. He contends that the court's action violated his rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law.
Land also argues that the trial court infringed on his right to full cross-examination when, he says, it prohibited defense counsel from asking leading questions of Detective Corvin. He contends that the court's action limiting cross-examination of Corvin violated his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law.
In response, the State points out that Land's counsel was allowed, without objection, to ask Fowler whether he had seen the memorandum at issue and that counsel obtained a response indicating that he had seen it. The State notes that Land's counsel then attempted to elicit from Fowler a statement of the contents of the memorandum. It argues that the memorandum was clearly hearsay evidence and inadmissible, and that the trial court therefore did not err in preventing Land from further questioning Fowler regarding the contents of the memorandum.
The Court of Criminal Appeals held that the trial court correctly ruled the internal police memorandum inadmissible hearsay. It stated: "`The general rule in Alabama is that an accused is not entitled to introduce testimony that someone else was suspected of committing the crime for which he is being tried.'" Land, 678 So. 2d at 207 (quoting Johnson v. State, 612 So. 2d 1288, 1293 (Ala. Cr.App.1992)).
With regard to Land's argument relating to his cross-examination of Detectives Fowler and Corvin, we note that the latitude and extent of cross-examination of witnesses rests within the sound discretion of the trial court and that the trial court's ruling on these matters will not be reversed except for an abuse of discretion. Ex parte Pope, 562 So. 2d 131 (Ala.1989), cert. denied, 498 U.S. 841, 111 S. Ct. 118, 112 L. Ed. 2d 87 (1990); Beavers v. State, 565 So. 2d 688 (Ala. Cr.App.1990). We find no abuse of discretion with regard to the trial court's limitation on Land's cross-examination of Fowler with regard to the police memorandum. The contents of the memorandum were clearly hearsay reduced to a writing. Although Land argues that the memorandum was admissible *240 under a "public records exception" to the hearsay rule, which he says is similar to the business records exception, we conclude that such an exception would not make the document admissible, and admissibility was required in order for Land to be entitled to further question Fowler about the document. Exceptions to the hearsay rule will not make admissible into evidence documents that are inadmissible for reasons other than the fact of their hearsay nature. Gullatt v. State, 409 So. 2d 466 (Ala.Cr.App.1981). In this case, the evidentiary rule relating to testimony about other suspects, which the Court of Criminal Appeals relied upon and which is quoted above, made the memorandum inadmissible. The trial court did not abuse its discretion in limiting Land's cross-examination of Detective Fowler.
Similarly, we find no abuse of discretion by the trial court with regard to Land's cross-examination of Detective Corvin. The trial court did sustain a "leading question" objection by the prosecution to a question asked of Corvin by defense counsel. However, we conclude that the one ruling by the trial court now complained of by Land did not prevent his counsel from conducting a thorough and sifting cross-examination of Corvin. The record contains an additional 30 pages of questioning of Corvin by defense counsel following the trial court's ruling that Land now claims abridged his constitutional rights.
Land argues that the trial court committed reversible error when it denied defense motions to excuse two prospective jurors for cause. Land argues that prospective Juror P.H. should have been dismissed for cause because, Land says, voir dire questioning revealed that he had significant knowledge about the case and that he had a significant potential for bias against Land arising from a sympathy for Ms. Brown's son. Land argues that prospective Juror W.H. should have been dismissed for cause because, he says, during voir dire W.H. expressed an unequivocal belief that once a person is found guilty of capital murder that person should be put to death and that life without parole should not be considered. Land argues that any later "rehabilitation" of W.H. was a response learned by W.H. after observing other similarly opinionated prospective jurors being struck from the jury panel.
In response, the State argues that prospective Juror P.H. did not need to be struck for cause because he indicated only that he had read the newspaper every day and recalled sketchy facts of the case, but did not know any specifics of it. The State argues that prospective Juror W.H. did not need to be struck for cause during questioning by the trial court because he clearly expressed his opinion that the death sentence was not appropriate in every murder case and that each case should be judged on its own merits. In sum, the State contends that there was no statutory ground on which to strike either of these prospective jurors for cause and that they did not show an absolute bias against Land or a fixed opinion as to his guilt or as to the application of the death penalty.
Even though a prospective juror may initially admit to a potential for bias, the trial court's denial of a motion to strike that person for cause will not be considered error by an appellate court if, upon further questioning, it is ultimately determined that the person can set aside his or her opinions and try the case fairly and impartially, based on the evidence and the law. Knop v. McCain, 561 So. 2d 229 (Ala.1989); Siebert v. State, 562 So. 2d 586 (Ala.Cr.App.1989), affirmed, 562 So. 2d 600 (Ala.), cert. denied, 498 U.S. 963, 111 S. Ct. 398, 112 L. Ed. 2d 408 (1990); Perryman v. State, 558 So. 2d 972 (Ala.Cr. App.1989). Only when a prospective juror's testimony indicates a bias or prejudice so fixed or deep-seated that that person cannot be impartial and objective must a challenge for cause be granted by the trial court. Knop, supra; Siebert, supra; Perryman, supra. Finally, a trial court's ruling on a motion to strike a juror for cause, based on an allegation of juror bias, is entitled to great weight and will not be disturbed on appeal unless it is shown that the court clearly abused its discretion. Forehand v. State, 624 So. 2d 688 (Ala.Cr.App.1993); Siebert, supra.
*241 After thoroughly reviewing the record, we conclude that the voir dire testimony of both P.H. and W.H. clearly indicates they could try the case fairly and impartially. Neither prospective juror expressed a deep-seated or fixed bias or prejudice that would have required a strike for cause. Accordingly, the trial court did not err in denying Land's motions.
Land contends, for the first time, that he was deprived of his rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law, to a reliable sentencing determination when, he says, the trial court ignored what he calls an unrebutted nonstatutory mitigating circumstance. Land argues that this unrebutted nonstatutory mitigating circumstance is shown by information contained in records from the Hillcrest mental facility regarding his treatment there in June 1986. Land stresses five bits of information contained in the reports: (1) that he suffered from a conduct disorder, (2) that he had an unstable home environment, (3) that he had significant impulse control problems, (4) that he had no father figure, and (5) that he had no contact with his natural father. Land argues that the trial court erred by simply holding that this information did not rise to the level of indicating a statutory mitigating circumstance, without considering it to indicate a nonstatutory one.
In response, the State argues that although the law requires that a sentencing authority must not be precluded from considering any mitigating evidence, a trial court is not required to list the evidence it considers in determining the existence or nonexistence of nonstatutory mitigating factors. It notes that in this case the trial court clearly stated in its sentencing order that it did consider Land's records from Hillcrest and, thus, that it must have considered the information Land now emphasizes. The State contends that it was not error for the trial court to consider the Hillcrest records without finding the existence of a nonstatutory mitigating circumstance.
In Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978), the Supreme Court stated that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (Emphasis original, footnote omitted.)
In Haney v. State, 603 So. 2d 368, 389 (Ala.Cr.App.1991), affirmed, 603 So. 2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S. Ct. 1297, 122 L. Ed. 2d 687 (1993), the Court of Criminal Appeals stated the following with regard to nonstatutory mitigating factors:
(Emphasis added.)
The trial court's sentencing order specifically stated that the court had reviewed the Hillcrest records Land now highlights. In fact, in his order the trial judge quoted a portion of those records summarizing Land's history and his condition on discharge. Although the trial court did not find that any of the circumstances described in the Hillcrest records qualified as statutory mitigating factors, it is clear to this Court that the trial court did consider that information when it determined Land's sentence. Thus, we find no plain error in the trial court's sentencing of Land.
Land also argues that the trial court's refusal to allow the use of a jury questionnaire form or individual voir dire prevented him from selecting a fair and impartial jury and, thus, violated his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution *242 and rights guaranteed by Alabama law. He contends that the use of a jury questionnaire, or individual voir dire examination of prospective jurors, was required in order for him to be able to conduct an effective voir dire designed to detect bias arising from pretrial publicity, without contaminating the entire venire. Land argues that the group voir dire, in which he says 33 of 56 members of the venire responded by indicating that they had been crime victims, left every prospective member of the jury with a greater sense of vulnerability to crime. Land contends that these discussions created an atmosphere of hostility toward him and destroyed any chance of a fair trial. Land also argues that group voir dire examination had the prejudicial effect of "training" members of the venire on how to answer questions relating to the use of the death penalty, in such a way as to avoid being struck for cause.
In response, the State argues that although the trial court did not permit individual sequestered voir dire examination or the use of a jury questionnaire the record shows that the trial court allowed extensive group voir dire examination on the questions of possible prejudice arising out of pre-trial publicity, as well as questions concerning the prospective jurors' views about the death penalty. The State contends that the trial court took adequate steps to ensure that Land would be judged by a fair and impartial jury and that the failure to use the voir dire examination procedure Land now argues was necessary was not reversible error.
A trial court is vested with great discretion in determining how voir dire examination will be conducted, and that court's decision on how extensive a voir dire examination is required will not be overturned except for an abuse of that discretion. Fletcher v. State, 291 Ala. 67, 277 So. 2d 882 (1973); Lane v. State, 644 So. 2d 1318 (Ala.Cr. App.1994); Harris v. State, 632 So. 2d 503 (Ala.Cr.App.1992), affirmed, 632 So. 2d 543 (Ala.1993), affirmed, ___ U.S. ___, 115 S. Ct. 1031, 130 L. Ed. 2d 1004 (1995). After reviewing the record, we conclude that the trial court did not abuse its discretion in this regard.
Land next argues that the trial court miscalculated what Land's age was at the time of Ms. Brown's murder, and that the miscalculation denied him an individualized sentence and thereby violated his rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law. Land states that he was born on May 23, 1969, and was only 22 years old at the time of Ms. Brown's death, on May 18, 1992. He argues that the trial court erroneously concluded that he was only a few days short of his 24th birthday at that time. Land contends that, based on the error, the trial court concluded that Land's age at the time of the crime was not an applicable mitigating circumstance. Relying on Lockett, supra, and its progeny, Land argues that the trial court's reliance on the miscalculation deprived him of the right to that court's consideration of a possible mitigating factor that would have suggested a sentence less than death and, thus, requires reversal of his sentence.
In response, the State notes that Land did not raise this claim at his sentencing or on direct appeal and that, therefore, it is subject to review only under the plain error standard. In sum, the State argues that Land has not shown the degree of harm required for a reversal under the plain error standard. It argues that even if the trial court had not made the miscalculation, which the State considers "minor," it is improbable that it would have made any difference in that court's decision that Land's age at the time of the crime was not a mitigating circumstance.
In its sentencing order, the trial court did miscalculate Land's age at the time of Ms. Brown's murder. The trial court stated that Land was "five days short of his 24th birthday," when he was actually five days short of his 23d birthday. Although Land has attempted to magnify the error by arguing he was only 22 and the trial court determined he was almost 24, the truth is that the trial court miscalculated by only one year. Whether he was five days short of 23, or five days short of 24, Land was clearly an adult, not a minor, when he killed Ms. Brown. We conclude that the trial court's miscalculation *243 of Land's age by one year did not rise to the level of plain error.
Land also argues that the prosecutor introduced, and that the trial court improperly admitted, evidence of a prior burglary at Ms. Brown home a few days before she was killed. Land argues that the admission of this evidence violated his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law. Land says that before his trial a local newspaper reported that Ms. Brown's home had been burglarized, and the phone line cut, a few days before her murder. Land says that the trial court granted his motion in limine to preclude the State from referring to this previous burglary, yet allowed the prosecutor to introduce facts about the burglary through the testimony of Ms. Brown's former landlord. Although Land's argument is not clearly articulated, he contends that it was reversible error for the trial court to overrule his objections and let the jury be told of a prior bad act that he says they would assume he committed.
In response, the State contends that here is no indication in the record that the prosecutor, or any witness called by the State, mentioned Land's involvement in a prior burglary, or mentioned even that a burglary had occurred. The State argues that the prosecutor merely described the sequence of events surrounding the murder, i.e., the res gestae.
As a general rule, when a person is being tried for the alleged commission of one crime, evidence that he or she committed another illegal act that is not now charged is generally inadmissible. McLemore v. State, 562 So. 2d 639 (Ala.Cr.App.1989); Gainer v. State, 553 So. 2d 673 (Ala.Cr.App.1989); C. Gamble, McElroy's Alabama Evidence § 69.01(1) (4th ed. 1991). An exception to this rule is that that evidence of the other crime is admissible if the other crime is part of the res gestae, or the transactions inseparable from the crime charged. Gainer; McElroy's, § 69.01(3).
Our review of the trial record indicates that there were no comments by the prosecution, and no testimony by a witness, informing the jury that a burglary had occurred at Ms. Brown's home a few days before her murder. The prosecutor did comment in his opening statement that the phone line at the house had been previously cut and then repaired before the night of Ms. Brown's abduction, and Ms. Brown's landlord was allowed to offer testimony to the same fact. However, the statements regarding the phone line did not directly violate the trial judge's order granting Land's motion in limine and directing the State not to mention the earlier burglary. Nor would a reasonable juror naturally assume from such limited statements that a prior burglary had occurred and that Land had committed it. The fact that the phone line had previously been cut and then repaired, shortly before Ms. Brown's abduction and murder, was sufficiently related to the murder to be considered part of the res gestae. We conclude that there was no violation of the general exclusionary rule described above and that the trial court did not err in overruling Land's objections.
Land argues that African-Americans were systematically underrepresented in the pool from which his jury was picked and that the systematic underrepresentation prevented his having a jury selected from a fair cross-section of the community and violated his rights guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law. Land says that in the Birmingham Division of Jefferson County, where his trial was held, African-Americans constitute 42.92% of the total population. He says that only 9 persons on the 56-member jury venire (or 16.07%) were African-Americans. Land argues that this 26.85% underrepresentation of African-Americans on his jury venire requires the reversal of his conviction and death sentence. Citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), Land notes that although he is white, he may raise an equal protection issue relating to exclusion of African-Americans *244 from his jury because, he says, the general rule is that a defendant claiming an equal protection violation resulting from the exclusion of a class of persons from a jury need not belong to the class of persons alleged to have been illegally excluded.
Although the State concedes that African-Americans constitute a distinctive group for equal protection purposes, it argues that, even assuming Land's census calculations are correct, he failed to establish that there had been a systematic exclusion of African-Americans from the venire. Citing Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), the State argues that Land has failed to establish all the elements needed to prove a violation of the constitutional requirement that a jury be taken from a fair cross-section of the community.
In Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975), the United States Supreme Court held that the systematic exclusion of women from the jury selection process deprived the defendant of his rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to have his jury selected from a fair cross-section of the community. Then in Duren, supra, the Court stated:
Duren v. Missouri, 439 U.S. at 364, 99 S. Ct. at 668-69. See Ex parte Dobyne, 672 So. 2d 1354 (Ala.1995). In Duren, the Supreme Court held that the defendant had met the third prong of the test, the most difficult one: "His undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of a year manifestly indicates that the cause of the underrepresentation was systematic that is, inherent in the particular jury selection process utilized." Duren v. Missouri, 439 U.S. at 366, 99 S. Ct. at 669. Land, however, has offered no evidence toward meeting the third prong of the test established in Duren. Thus, we conclude that Land's argument on this issue is without merit.
Finally, Land argues that the trial court's failure to transcribe certain portions of the trial proceedings requires a reversal of his conviction and sentence because, he says, it prevented him from obtaining a full review of critical portions of his trial. Land says that the trial record reveals over 20 instances in which no transcription was made during what he says were important portions of his trial. According to Land, these portions of the trial include selection of the jury venire; striking the jury; conferences regarding the admissibility of testimony or exhibits offered by the State; a conference that occurred just before Land waived his right to testify; a conference on jury instructions; and the polling of the jury at both phases of the trial.
Land contends he was prejudiced by the lack of a complete transcription. He first argues that it prevented him from challenging the trial court's methods used for selecting a venire and for striking the jury. Land contends that numerous objections he made to the admission of prosecution testimony or exhibits were not preserved. Finally, he argues that the failure to transcribe a conference that occurred just before he waived his right to testify prevented him from challenging that waiver as involuntary or unknowing.
In response, the State argues that there are only two ways Land could show that he was legally entitled to have transcriptions made of the portions of the trial that were not transcribed: (1) by showing that he filed, and that the court granted, a pretrial motion for a transcription of the entire proceedings, or (2) by showing that those portions of the trial not transcribed came within the requirements of Rule 19.4(a), Ala.R.Crim.P.. The State says that Land did not move to have all portions of the proceedings transcribed, and it argues that none of the portions not transcribed *245 falls within the requirements of Rule 19.4(a). The State further argues that Land's claim of prejudice is unpersuasive because, it says, he has failed to show any untranscribed trial incident as to which he could prove reversible error if he had a transcription of the incident.
We conclude that there is no merit to Land's claim of reversible error based on the lack of a complete transcript of his entire trial proceedings. In Hammond v. State, 665 So. 2d 970, 972 (Ala.Crim.App.1995), the Court of Criminal Appeals stated that with regard to such a claim as Land now makes, the reviewing court "must determine whether a substantial right of the appellant has been adversely affected by [the] omission from the transcript." Further, this Court has ruled that even where a transcript was lacking for a portion of the trial that should have been transcribed and the defendant's appellate counsel had not been the defendant's trial counsel, the appellate court had to examine the existing record of the trial in order to determine whether the failure to transcribe that portion of the trial was only harmless error rather than reversible error. Ex parte Harris, 632 So. 2d 543 (Ala.1993) (holding that although the failure to transcribe the voir dire examination of the jury was error, it was only harmless error, even when the trial court had granted the defendant's motion to have all proceedings in all phases of the trial transcribed), affirmed, ___ U.S. ___, 115 S. Ct. 1031, 130 L. Ed. 2d 1004 (1995).
The portions of the trial that Land says were not transcribed involve selection of the jury venire and striking the jury; bench conferences among the trial judge, the prosecution, and defense counsel; or the polling of the jury. Regarding transcription of a capital murder trial, such as Land's, Rule 19.4(a), Ala.R.Crim.P.,[4] states:
(Emphasis added.)
In Ex parte Harris, this Court noted that the phrase "arguments of counsel," as it is used in Rule 19.4(a), does not refer to "every incidental discussion between counsel and the trial judge that occurs at the bench," but, rather, refers only to counsel's opening and closing arguments. 632 So. 2d at 545. Thus, it is clear that Rule 19.4(a) did not require the court reporter to transcribe the various bench conferences now placed in issue by Land. Although Land claims error in the lack of a transcript of the court's selection of the venire and of the actual striking of the jury, Rule 19.4(a) requires only transcription of the "voir dire of the venire," which was transcribed in full and which is part of the record in this case. Nor does Rule 19.4(a) require transcription of the polling of the jury. The transcript shows that both following the jury foreman's pronouncement of the jury's finding as to guilt and then later following the foreman's pronouncement of the jury's recommended sentence, the court reporter made a contemporaneous notation indicating that the judge polled the jury.
It is important to note that Land did not request that all proceedings of the trial be transcribed and, as explained above, Rule 19.4(a) did not require that they all be transcribed. Thus, Land cannot argue that the trial court breached a legal duty with regard to the transcription of his trial. Moreover, Land is raising this issue for the first time on appeal, and our review is subject to the plain error standard. After reviewing the record at the point of each transcript omission referenced by Land, we conclude that the lack of a complete transcription has not adversely affected his substantial rights. Thus, we find no plain error.
As noted above, we have reviewed the record and the briefs, we have considered the arguments made before us on oral argument, and we have examined the opinion of the Court of Criminal Appeals in relation to the issues raised before that court. We have also thoroughly reviewed the record for plain error, but have found none. We conclude that the Court of Criminal Appeals did not err in affirming Land's conviction and sentence. Moreover, we find that the record contains overwhelming evidence indicating Land's guilt. The judgment of the Court of Criminal Appeals affirming Land's conviction and death sentence is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY,[*] INGRAM, and COOK, JJ., concur.
BUTTS, Justice.
Land has raised a new argument on application for rehearing. Land, a white male, argues that the State used its peremptory challenges to strike white veniremembers, and particularly white men, in a racially discriminatory and gender-discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). Land did not raise this argument in the trial court, before the Court of Criminal Appeals, or before this Court on its original review. Further, we did not find such a violation on our review of the record for plain error.
As noted previously, Land has also argued that he should receive a new trial because, he says, African-Americans were systematically underrepresented in the venire and, thus, his jury was not chosen from a fair cross-section of the community. The jury pool for Land's trial was composed of 9 African-Americans and 47 white persons. However, we held that Land did not meet the test set out in Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), for proving such a Constitutional violation (see part XIII of the March 1, 1996, opinion). Now, in what he has said was a jury pool that overrepresented the white population, Land argues that he was prejudiced by the State's using its peremptory challenges to strike white persons from the venire. Specifically, Land argues discrimination by the State's using 11 of its 14 peremptory challenges against white members of the venire, and 7 of the 14 against white men. However, we also note that the record reveals that Land himself used all 14 of his peremptory challenges to strike white persons, and used 7 of the 14 against white men.
The record shows that Land did not object to the State's use of its peremptory strikes. Accordingly, no hearing was held in the trial court pursuant to the procedure set out in Ex parte Branch, 526 So. 2d 609 (Ala. 1987). Land now argues that he has made out a prima facie case of intentional racial and gender discrimination, and that his case must be remanded to the trial court for an evidentiary hearing to allow the State to present race-neutral and gender-neutral reasons for its strikes. We conclude, however, on review of the record, that Land has not made a prima facie showing that the State used its peremptory strikes in violation of Batson or J.E.B. Accordingly, we find no error in the State's use of its peremptory challenges.
APPLICATION OVERRULED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, INGRAM, and COOK, JJ., concur.
[1] The parties agree that Land was arrested at this point.
[2] We further note that the lack of a contemporaneous objection by experienced defense counsel leads this Court to believe that the prosecutor's comment was not stated with an inflection or tone that would have naturally led a listener to construe it as a reference to Land's failure to testify.
[3] In Grantham, the Court of Criminal Appeals stated: "Sections 12-21-35 and 36-18-2 [Ala. Code 1975] essentially establish a public record exception to the hearsay rule that is similar in nature to the business record exception found in § 12-21-43." 580 So. 2d at 55.
[4] This rule creates duties for the court reporter in addition to those established by Ala.Code 1975, § 12-17-275.
[*] Justice Kennedy did not sit at oral argument of this case; however, he has listened to the tape of that oral argument. | May 17, 1996 |
38bc4768-d6e9-42ed-bff6-a6cc0548cb6e | Ex Parte Kaschak | 681 So. 2d 197 | 1950498 | Alabama | Alabama Supreme Court | 681 So. 2d 197 (1996)
Ex Parte Anthony KASCHAK.
(Re Joe G. CROMEANS v. PARKWAY MEATS, INC., et al.).
1950498.
Supreme Court of Alabama.
June 7, 1996.
Rehearing Denied July 19, 1996.
*198 William W. Tally of Tally & Tally, Scottsboro, for petitioner Anthony Kaschak.
Gerald R. Paulk of Livingston, Porter & Paulk, P.C., Scottsboro, for respondent Joe G. Cromeans.
INGRAM, Justice.
In 1990, Joe Cromeans, the owner of Jackson Square Shopping Center in Jackson County, rented two commercial spaces to Parkway Meats, Inc. William Bennett signed the lease as president of Parkway Meats. Anthony Kaschak signed the lease between Cromeans and Parkway Meats as *199 guarantor of the lease payments. Parkway Meats defaulted on the lease. Cromeans relet the property to new tenants, offering the new tenants free occupancy for a period as an inducement to enter into the lease. The trial court entered a judgment in favor of Cromeans and against Parkway Meats, William and Illa Bennett, and Kaschak, separately and severally, for rent owed up until the time the lease was terminated and the property was relet to the new tenants. The Court of Civil Appeals reversed the judgment of the trial court, holding that Kaschak, the guarantor, was liable for additional rent beyond the termination of the lease and up until the time the new tenants actually began paying rent, regardless of the date the new leases began. Cromeans v. Parkway Meats, Inc., 681 So. 2d 194 (Ala.Civ.App.1995). We granted Kaschak's petition for certiorari review.
In 1989, William Bennett became interested in leasing property from Cromeans to use for the operation of a custom meat market. Cromeans agreed to lease Bennett property in Jackson Square Shopping Center if Bennett found someone to guarantee payment of the rent called for by the lease. Anthony Kaschak agreed to sign as Bennett's guarantor.
On March 29, 1990, Cromeans and Parkway Meats, Inc., a corporation controlled by Bennett, executed a five-year lease, by which a business operated by Parkway Meats would occupy Units 9 and 10 of the shopping center. Bennett signed the lease as president, and Bennett and his wife, along with Kaschak, also signed as guarantors on a separate guaranty of lease agreement. The monthly rental on Unit 9 was $1,130.21 and the monthly rental on Unit 10 was $904.17.
Bennett paid Cromeans one month's rent in advance as a deposit and was allowed two free monthsi.e., two months' occupancy without rentto help him pay for "fixturing." His first rent payment was due on June 1, 1990. Bennett paid only four additional months' rent. Bennett's business failed, and he closed his store on December 31, 1990. Bennett performed work and gave goods and materials to Cromeans, for which he received a $5,358.83 credit against rent.
Upon learning that Bennett would soon be vacating the property, Cromeans began looking for new tenants. On January 18, 1991, Cromeans entered into a new lease agreement with R & R Foods, Inc., on Unit 10 for use as a Little Caesar's restaurant. However, R & R Foods was not required to pay rent until October 1, 1991. On March 29, 1991, Cromeans entered into a new lease agreement with Peh Kiang Chia on Unit 9; Chia was to use that unit for the Kim San Chinese restaurant, but Chia was not required to pay rent until September 1, 1991.
Cromeans sued the Bennetts, Parkway Meats, and Kaschak for the difference between the amount Bennett had paid on the rent due for Units 9 and 10 and the amount that would have been paid on those units, at the rate agreed to by Bennett, up until the time the new lessees actually began paying rent.
The trial court held that the actions of Cromeans between the end of December 1990 and March 29, 1991, constituted an acceptance of Bennett's abandonment of the property and a re-entry by Cromeans and, thus, that the lease had been terminated. Therefore, the trial court held that the Bennetts and Kaschak were responsible for rent (less any credits) on Unit 9 from July 1, 1990, through March 29, 1991, and on Unit 10, from July 1, 1990, through January 18, 1991. In other words, the trial court held that Bennett and Kaschak were responsible for paying the rent up until the time Cromeans entered into new leases. Cromeans moved to alter, amend, or vacate the judgment, arguing that the judgment award was inadequate. The trial court granted his motion in part, conceding that the monthly rent owed by Bennett and Kaschak was to begin June 1, 1990, rather than July 1, 1990. As to any remaining issues, the motion was denied.
The Court of Civil Appeals reversed, stating that this case did not involve the simple breach of a lease agreement. Rather, it held, the trial court erred in failing to address the guaranty agreement and its ramifications on the actions of the parties. The Court of Civil Appeals, quoting 38 C.J.S. Guaranty § 69 (1943), stated that "`[w]here *200 the guaranty is an absolute one for rent for premises leased for a certain business, the guarantor is not discharged because the tenant is prevented from carrying on such business.'" 681 So. 2d at 197. The Court of Civil Appeals stated that the terms of the guaranty agreement were clear and unambiguous and that Kaschak's liability would "not be affected by any repossession of the leased premises by the Lessor." 681 So. 2d at 197. Cromeans sought to recover for rents and expenses through September 1, 1991, on Unit 9 and through October 1, 1991, on Unit 10. The Court of Civil Appeals held that if Cromeans had not allowed the new tenants to occupy the units without paying rent, then he would not have been able to secure the new leases and that not securing the new leases would have increased the liability of Bennett and Kaschak. Therefore, the Court of Civil Appeals reversed the judgment and remanded the case for the trial court to recalculate the rent owed to Cromeans.
Kaschak argues that it is illogical for a guarantor of a lease to remain liable when, as a matter of law, the original lessee is discharged. He further contends that the Court of Civil Appeals erred in holding that the guarantor's obligation under the lease guaranty continued even though the lease was terminated and the lessee owed no further rent. Kaschak maintains that this Court has never dealt specifically with the question whether the termination of the underlying lease also terminates a lease guaranty.
The trial court and the Court of Civil Appeals correctly held that when a tenant abandons leased premises the landlord has two options. First, the landlord may allow the premises to remain vacant and recover rent for the whole term of the lease, or the landlord may end the lease by accepting the abandoned property and re-entering the premises. Ryals v. Laney, 338 So. 2d 413 (Ala.Civ.App.1976). Furthermore, the landlord is under no affirmative duty to mitigate any damages arising under default on a lease agreement by a tenant. Whether a landlord has accepted a tenant's abandonment of leased premises, so as thereby to terminate the lease, is a question of fact, and an acceptance may be implied from acts and conduct of the landlord. Cobb v. Lee, 44 Ala.App. 277, 207 So. 2d 143 (1968). McClure v. Daniel, 45 Ala.App. 558, 233 So. 2d 500 (1970). Mere acceptance of keys to leased premises, standing alone, does not manifest an intention on the part of the landlord to terminate a lease. Ryals, supra. In this case, the trial court held that the landlord had accepted the tenant's abandonment of the premises. Therefore, the trial court held that the lease as it related to Unit 10 was terminated on January 18, 1991, and as to Unit 9 was terminated on March 29, 1991.
We find no Alabama cases specifically dealing with the issue presented in this case. We must first look to the language in the guaranty agreement to determine if something in that language would obligate the guarantor beyond the termination of the lease between Bennett and Cromeans.
Section 1 of the guaranty agreement provides, in pertinent part, the following:
(Emphasis added.)
It is this emphasized language that the Court of Civil Appeals relied upon in extending the liability of the guarantor beyond that of the original lessee. We do not believe that *201 this language extends the guarantor's liability. Rather, it simply means that the guarantor may still be liable for anything that the lessee may be held liable for, even if the lessor repossesses the property.
The guaranty agreement in this case is an unconditional one. Because the guaranty agreement secures a principal or primary obligation, the liability of the guarantor also depends upon a construction and application of the primary contract. 38 Am. Jur.2d Guaranty § 73 (1968). As the Court of Civil Appeals correctly noted, the terms of the guaranty agreement control the obligations of the guarantor. However, we note that when a contract of guaranty is unconditional and does not limit in any way the obligations of the guarantor, the liability of the guarantor will not exceed the liability of the principal debtor. 38 Am.Jur.2d Guaranty § 74 (1968). Therefore, all guaranty contracts are conditioned upon the principal contract between the creditor and the principal debtor. 38 Am.Jur.2d Guaranty § 74 (1968); Northern Indiana Steel Supply Co. v. Chrisman, 139 Ind.App. 27, 204 N.E.2d 668 (1965).
In order to be entitled to enforce the obligation of the contract of guaranty, the creditor must show that the guaranteed debt or obligation is due, and if for any reason the debtor is not bound to make payment to the creditor, then the creditor may not hold the guarantor liable. 38 Am.Jur.2d Guaranty § 77 (1968). Like a surety, a guarantor is liable only in the event and to the extent that the principal is liable. 38 Am.Jur.2d Guaranty § 77 (1968). As noted in Brywood Ltd. Partners, L.P. v. H.T.G., Inc., 866 S.W.2d 903 (Mo.App.1993), a lessor can recover on an unconditional guaranty of a lease only by proving a claim against the lessee on the underlying lease agreement.
Cromeans relet the property after re-entering. The trial court correctly held that the reletting terminated the lease agreement. There can be no liability for rent from the date of the new leases, because the original lessee would have no right to possession of the property thereafter, even if Cromeans was not receiving rent for several months. Because there could be no liability upon the part of the original lessee for the period after Cromeans entered the new leases, it follows that there could be no liability upon the part of the guarantor for that period. Accordingly, we reverse the judgment of the Court of Civil Appeals and remand the cause for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and ALMON, KENNEDY, and COOK, JJ., concur.
BUTTS, J., concurs in the result.
MADDOX and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
I would affirm the judgment of the Court of Civil Appeals. Government Street Lumber Co. v. AmSouth Bank, N.A., 553 So. 2d 68 (Ala.1989). In this case, we are dealing with a guaranty that is clear and certain. Its construction and legal effect are questions of law for the court and not questions of fact to be resolved by the trier of the facts.
MADDOX, J., concurs. | June 7, 1996 |
6339762c-0956-42d8-a61a-e127a6240dfb | Copeland v. Samford University | 686 So. 2d 190 | 1931659 | Alabama | Alabama Supreme Court | 686 So. 2d 190 (1996)
William J. COPELAND, et al.
v.
SAMFORD UNIVERSITY.
No. 1931659.
Supreme Court of Alabama.
April 5, 1996.
Rehearing Denied December 13, 1996.
*191 J. Michael Campbell, Birmingham, for Appellants.
Edward O. Conerly and Matthew W. Veal, Birmingham, for Appellee.
COOK, Justice.
William J. Copeland and Emilea Copeland, parents of Rex Bartly Copeland, appeal from a summary judgment entered in favor of Samford University on their claim against Samford University based on the wrongful death of their son Rex. The complaint, filed against Samford University and William L. Slagle, a former professor at Samford, alleges in part that Samford University negligently hired Slagle; that Samford negligently supervised Slagle; and that Samford is liable under the theory of respondeat superior for the murder of their son, Rex, by Slagle. Slagle, who was convicted of murder pursuant to § 13A-6-2, Ala.Code 1975, is presently serving a life sentence for the crime. See Slagle v. State, 606 So. 2d 193 (Ala.Cr.App. 1992).
Following the entry of the summary judgment for Samford, the trial proceeded against Slagle, resulting in a $12,000,000 jury verdict and judgment for the plaintiffs. Although the plaintiffs' notice of appeal named both defendants as appellees, the issues they raised in their brief concern only the defendant Samford; therefore, we consider Samford to be the only appellee. For the following reasons, we affirm the judgment for Samford.
We have written the following in regard to our review of a summary judgment:
Diamond v. Aronov, 621 So. 2d 263, 265 (Ala. 1993).
Rex Copeland was a junior at Samford University at the time of his death. He was a member of the debate team and had been a member of that team since entering Samford as a freshman. By all accounts, he was an accomplished debater. William Slagle, his debate coach, had been hired by Samford in September 1987, the year Copeland entered Samford as a freshman. Slagle came to Samford from Mercer University in Macon, Georgia, where he had been employed for approximately 10 years as debate coach. From 1987 until Copeland's death, the debate team at Samford was nationally competitive.
Several months before his death, in preparation for an upcoming debate, Rex had been assigned a particular topic to research for his team. The team held a practice debate on September 21, 1989. Rex's team lost the practice debate and, considering the evidence in a light most favorable to Copeland, one could conclude that both Rex and Slagle were upset. Several days later Rex's body was discovered in his apartment.
In his summary judgment order, the trial court stated, in pertinent part:
"The doctrine of the Gilliam case was followed in Goodloe v. Memphis & C.R.R., 107 Ala. 233, 240, 18 So. 166, 167, 29 L.R.A. 729, 54 A.St.Rep. 67, [(1895),] when the Supreme Court said:
"Therefore, the issue to be determined here is whether ... the act committed by Slagle was done while acting within the line and scope of his employment. There are generally three tests to determine whether ... one is acting within the line and scope of his employment and whether... the employer is liable for the acts of the servant. Where there is a slight deviation from the master's business the court may determine as a matter of law that the servant was within the line and scope of the master's business. If the servant has [made] a radical deviation wholly for personal motives or to gratify his personal objectives or desires that is a marked and unusual deviation then the master would not be liable [,] as a matter of law. Cases that fall in between these two boundaries call for the finder of fact to determine the issue. Hendley v. Springhill Memorial Hospital, 575 So. 2d 547 (Ala.1990).
"The court finds from the evidence in this case that the actions of Slagle were not in the pursuance of the business of Samford University and that there was a radical deviation or departure from the authority given to him by Samford University.
C.R. 811-16.
The plaintiffs contend that the trial court erred in entering the summary judgment while, they say, crucial discovery was pending. The record indicates that this case was placed on the "administrative docket" in February 1992 in order to allow Slagle to appeal his murder conviction before this civil action was tried. In Slagle's criminal case, this Court denied his petition for certiorari review on October 23, 1992. The Copelands then moved that this civil case be removed from the administrative docket and placed on the active docket; on November 30, 1993, the trial was set for May 2, 1994. Samford moved for a summary judgment on April 11, 1994, and a hearing was set on its motion for April 22. The plaintiffs then moved for an order to obtain deposition testimony from Slagle; the motion was granted on April 13, 1994. On April 18, the plaintiffs filed a "motion to extend time for filing affidavits and depositions in opposition to Defendants' Motion for summary judgment or in the alternative, motion to continue." That motion stated in pertinent part:
C.R. 345-46. That motion was denied. On April 19, 1994, Slagle, on the advice of his attorney, refused to answer most of the questions propounded to him.[1] The plaintiffs then moved for sanctions, requesting, in the alternative, that the hearing on the motion for summary judgment be continued until disposition of Slagle's pending habeas corpus petition or until Slagle could be deposed. The trial judge did not rule on the motion. The court held a hearing on the summary judgment motion on April 22, and the trial court informed the parties by telephone on April 29 that Samford's motion for summary judgment would be granted. The plaintiffs' brief in opposition to the motion for summary judgment did not address their earlier argument that Slagle's deposition testimony constituted crucial discovery. The court signed the summary judgment order on May 2, 1994. The plaintiffs then filed a motion to alter, amend, or vacate the judgment for Samford University. Again, they did not argue that crucial discovery had been pending when the motion was granted.
"`[C]ontinuances are not favored and ... 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)." Scullin v. Cameron, 518 So. 2d 695, 698 (Ala.1987). With regard to a court's entering a summary judgment while allegedly crucial discovery is pending, we have said:
Reeves v. Porter, 521 So. 2d 963, 965 (Ala. 1988). See also Diamond v. Aronov, 621 So. 2d 263, 265-66 (Ala.1993). The plaintiffs argue that Slagle's deposition testimony is crucial in this case; however, we note that this case had been taken off the administrative docket at the request of the plaintiffs, with a May trial date set. The record does not show that the plaintiffs made any attempt to depose Slagle before April 13, 1994. Furthermore, the Copelands did not address their crucial discovery argument in their brief in opposition to the motion for summary judgment or in their motion to vacate that judgment. Assuming that this issue is even preserved for our review, in light of these facts we conclude that the judge's refusal to grant a continuance based on pending discovery was not error.
The Copelands contend that Slagle was acting within the line and scope of his employment when he murdered their son Rex. The question here is whether, at the time of the murder, Slagle was on Samford's business when he went to Copeland's apartment. If, as the Copelands argue, Slagle went to Rex's apartment to discuss Rex's performance during the practice debate, was there a deviation from his master's business thereafter? The trial court considered the murder to be a major deviation from the master's business, as a matter of law, and granted Samford's motion for summary judgment.
In opposition to the motion for summary judgment, the plaintiffs offered the testimony of Allegra Jordan, Scott Barber, and Steven Scott given during Slagle's criminal trial, along with a letter written by Slagle before he was arrested; the letter also had been put in evidence at Slagle's trial. Although the parties had stipulated as to the authenticity of the criminal trial record, Samford objected to the admission of this evidence in opposition to its motion for summary judgment.
We note that Samford was not a party to the criminal trial against Slagle. While the plaintiffs urge this Court to adopt the Federal rule set out in United States v. O'Connell, 890 F.2d 563 (1st Cir.1989)that testimony from previous adversarial proceedings should be admitted for consideration on motions for summary judgmentwe decline to do so in this case. The plaintiffs admitted in their motion to vacate the summary judgment that they could easily have obtained the affidavit *196 testimony of at least two of the persons whose prior sworn testimony was offered in opposition to the motion for summary judgment. C.R. at 819. In addition, as we have previously noted, the plaintiffs did not attempt to depose Slagle until a few days before the hearing on the motion for summary judgment. The trial court was correct in striking the evidence.
Next, the Copelands alleged that Samford had negligently hired Slagle as its debate coach and thereafter had negligently supervised him. The record shows that the Copelands did not present substantial evidence that Samford should have, or that it could have, foreseen that Slagle would or might commit the murder.
Finally, the Copelands contend that Samford did not file a narrative statement with its motion for summary judgment, as required by Rule 56(c). The Copelands made no objection on this basis at any time before the court ruled on the motion for summary judgment; therefore, that issue was not preserved for review.
The summary judgment for Samford University is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, and KENNEDY, JJ., concur.
[1] At that time, Slagle had a petition for writ of habeas corpus pending. | April 5, 1996 |
1b722ccf-66cd-4616-9027-63b31d4d9041 | BP Exploration & Oil, Inc. v. Hopkins | 678 So. 2d 1052 | 1941287 | Alabama | Alabama Supreme Court | 678 So. 2d 1052 (1996)
BP EXPLORATION & OIL, INC.
v.
Troy HOPKINS and Charlotte Hopkins Hermann.
1941287.
Supreme Court of Alabama.
April 26, 1996.
*1053 David A. Bagwell of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, Linda A. Friedman and Fred M. Haston III of Bradley, Arant, Rose & White, Birmingham, for Appellant.
Richard D. Horne, Mobile, for Appellees.
SHORES, Justice.
Troy Hopkins and his daughter, Charlotte Hopkins Hermann ("the Hopkinses"), together as business partners, operated a gasoline service station in Mobile, as a licensed motor fuel dealer for BP Exploration & Oil, Inc. ("BP"),[1] until they closed their business in 1991. In 1986, the Hopkinses sued BP, alleging that BP had violated the Alabama Motor Fuel Marketing Act ("AMFMA"), Ala. Code 1975, § 8-22-1 et seq., because, they said, BP had "transferred" fuel from its wholesale level to its own company stations at a "transfer price" that was lower than the price at which BP sold gasoline to the independent dealer outlets like the one they owned.
In January 1995, BP moved for a summary judgment. BP argued that when it supplied gasoline to its own company-owned stations, it did not use a "transfer price" within the meaning of the AMFMA. BP also contended that, in any event, it did not violate the AMFMA because, it said, the AMFMA does not require integrated oil companies like BP to establish a transfer price.
The Hopkinses opposed BP's motion for a summary judgment. They contended that the AMFMA requires BP and other vertically integrated refiners to establish a transfer price for gasoline transferred to company-operated stations from their marketing unit.
The circuit court denied BP's motion, without an opinion. This Court granted BP permission to appeal from the denial of the summary judgment. See Rule 5, Ala.R.App.P.
Does the AMFMA, §§ 8-22-1 to -18, Ala. Code 1975, require that a refiner doing business in Alabama establish and maintain a "transfer price" as that term is used in the Act?
The purpose and intent of the AMFMA is to "encourage fair and honest competition, and to safeguard the public against the creation of monopolies or unfair methods of competition, in transactions involving the sale of, or offer to sell, or inducement to sell motor fuel in the wholesale and retail trades in this state." § 8-22-3; McGuire Oil Co. v. Mapco, Inc., 612 So. 2d 417 (Ala.1992); Star Service & Petroleum Co. v. State, 518 So. 2d 126 (Ala.Civ.App.1986). As a federal district court has observed, "Alabama has an interest in preventing unfair and dishonest competition, monopolies, and price wars.... The [AMFMA] protects those interests and thereby protects both independent retailers... and the general consuming public." State ex rel. Galanos v. Star Service & Petroleum Co., 616 F. Supp. 429, 431 (S.D.Ala. 1985). In other words, the AMFMA prohibits a vertically integrated oil company like BPwhich not only produces gasoline, and then distributes it at wholesale, but operates it own retail gasoline stationsfrom selling gasoline to independently owned and operated BP stations at prices that are higher than the prices at which the company transfers gasoline to company-owned and -operated stations. To this end Section 8-22-7 states:
Section 8-22-4(18) of the AMFMA defines "transfer price" as follows:
Section 8-22-5 requires disclosure of a transfer price:
BP argues that because it has not established a transfer price between its marketing unit and its company-owned and -operated stations, then the provisions of the AMFMA do not apply to BP. The Hopkinses, on the other hand, argue that the AMFMA requires BP and other vertically integrated refiners to establish a transfer price for gasoline supplied to company-operated stations. Any other interpretation of the AMFMA, the Hopkinses argue, would defeat the chief objective of the AMFMA. We agree with the Hopkinses.
"In construing a statute, the intent of the legislature, as expressed in the statute, is ascertained and effectuated, and that intent may be gleaned from considering the language used, the reason and necessity for the act, and the goals sought to be accomplished." McGuire Oil Co. v. Mapco, Inc., 612 So. 2d 417 (Ala.1992). The court is to ascertain and give effect to the legislature's intent as expressed in the words of the statute. Commercial Standard Ins. Co. v. Alabama Surface Mining Reclamation Comm'n, 443 So. 2d 1245 (Ala.Civ.App.1983), cert. denied, 467 U.S. 1242, 104 S. Ct. 3514, 82 L. Ed. 2d 822 (1984). A statute susceptible to either of two opposing interpretations must be read in the manner that effectuates rather than frustrates the major purpose of the legislative draftsmen. Shapiro v. United States, 335 U.S. 1, 68 S. Ct. 1375, 92 L. Ed. 1787 (1948).
If we were to adopt BP's argument that an integrated oil company like BP can decide for itself whether it will maintain a transfer price, then every integrated refiner operating retail outlets in Alabama could avoid AMFMA liability by refusing to establish a transfer price when transferring gasoline to company-operated stations. Such an interpretation of the AMFMA would defeat the purpose of that statute and would nullify and eliminate the statute entirelyit would be impossible to establish a violation of the AMFMA's prohibition of discriminatory pricing unless there are two prices to compare. In order to give a reasonable interpretation to the statute and to effectuate the legislative intent to "encourage fair and honest competition," we interpret the statute as requiring that an oil company furnishing gasoline both to independent stations and to company-operated stations establish a transfer price with respect to intracompany transfers of gasoline to its company-operated retail stations.
BP contends that an interpretation of the AMFMA that requires an oil company to establish a transfer price makes the statute unconstitutionally vague. We disagree. "`For [the statute] to constitute a deprivation of due process, it must be "so vague and indefinite as really to be no rule or standard at all."'" Friday v. Ethanol Corp., 539 So. 2d 208 (Ala.1988), quoting Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.1981), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981). While BP construes the AMFMA differently from the way the plaintiff construes it, the fact that the parties have construed it differently does not render the statute unconstitutionally vague. As this Court recognized in Friday v. Ethanol Corp., supra, "`[t]hese attempts at statutory construction illustrate that [the statute] is ... at least amenable to some sensible construction. Thus, it does alert the parties to the character of the prescribed conduct ... and does amount to something more than "no rule ... at all."'" 539 So. 2d at 213-14.
Accordingly, we conclude that the trial court properly denied BP's motion for summary judgment.
AFFIRMED.
MADDOX, HOUSTON, KENNEDY and COOK, JJ., concur.
[1] The parties agree that the name "BP Exploration & Oil, Inc." correctly names the only defendant in this case. This avoids unnecessary confusion that might be caused if the parties had to trace several changes in the business when (1) Standard Oil Company of Ohio ultimately became known as "BP" and when (2) BP bought the marketing assets of Gulf Oil Company in eight southeastern states. The Hopkinses station had been a Gulf station. | April 26, 1996 |
3628898b-3762-4c22-82a4-291ea7445d0b | Ricketts v. Norfolk Southern Ry. Co. | 686 So. 2d 1100 | 1941267 | Alabama | Alabama Supreme Court | 686 So. 2d 1100 (1996)
Robert RICKETTS, individually and as father and next friend of Eric Ricketts, a minor
v.
NORFOLK SOUTHERN RAILWAY COMPANY.
1941267.
Supreme Court of Alabama.
June 14, 1996.
Rehearing Denied November 27, 1996.
*1101 Kenneth Ingram, Jr. of Morris, Haynes, Ingram & Hornsby, Alexander City, and Fred Wood of Green, Wood & Howell, Hamilton, for Appellant.
Morris W. Savage of Bankhead & Savage, Jasper, Crawford S. McGivaren, Jr. of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for Appellee.
*1102 SHORES, Justice.
The plaintiff Robert Ricketts appeals from a judgment based on a directed verdict for the defendant Norfolk Southern Railway Company, in a personal injury action. We reverse and remand.
Ricketts's action is based on injuries to his son, Eric Ricketts, who, at age 14, was severely injured in a fall from the Railroad's Brushy Creek trestle in Marion County, Alabama. The Brushy Creek trestle is 187 feet high, with a span of 1230 feet; it is the fifth highest trestle on the Norfolk Southern line. It is of "open deck" construction, meaning that a person standing on the trestle can look between the railroad ties to the ground below. There are no rails or banisters on the side of the trestle. In 1988, Norfolk Southern purchased the railroad line extending from Centralia, Illinois, to Haleyville, Alabama, which includes the Brushy Creek trestle. Norfolk Southern has never conducted railroad operations along that portion of the line from Hackleburg south to Haleyville; the Brushy Creek trestle is located along that portion. In December 1992, the railroad petitioned the Interstate Commerce Commission for permission to abandon the line between Red Bay and Haleyville, including the Brushy Creek trestle.
On the afternoon of September 14, 1993, Eric Ricketts and two companions, Sam McGough and Bubba Branch, drove their four-wheel all-terrain vehicles ("ATVs") out onto the trestle. Because the ATVs would not fit flat on the trestle deck, the boys rode them with the left wheels perched on top of one rail. At a point where he was 160 feet above the ground, Eric's ATV got stuck. As he attempted to get his ATV loose, he fell from the trestle, sustaining severe injuries. Eric was in a coma for four months following the accident. He is now spastic and can do nothing to help care for himself. Expensive shots are needed each three months to keep his spasticity under control. He requires 24-hour supervised care and will require such care for the rest of his life.
On July 12, 1994, Robert Ricketts, as Eric's father and next friend, sued Southern Railway Company, T.A. Heilig, Howard Frye, and fictitiously named defendants. Eric's mother, Shirley Ricketts, was later added as a plaintiff. The Rickettses' complaint alleged liability based on negligence, wantonness, the principle stated in Restatement (Second) of the Law of Torts, § 339 (1965), and the attractive nuisance theory. Norfolk Southern Railway Company (as successor in interest to Southern Railway Company) and defendants Heilig and Frye answered, denying that § 339 of the Restatement has any application in this case and pleading the affirmative defenses of contributory negligence and assumption of the risk. The court entered a summary judgment for the defendants on the plaintiffs' attractive nuisance claim.
On April 10, 1995, the trial began. The plaintiffs' case was concluded on April 17, 1996; at that time the plaintiffs dismissed defendants Heilig and Frye, with prejudice. Norfolk Southern then moved for a directed verdict. On April 19, 1995, Judge Bobby R. Aderholt granted Norfolk Southern's motion for a directed verdict, in open court:
On June 9, 1995, the trial judge issued the following order, which failed to make a more definite statement of findings:
The plaintiffs moved for a new trial, which was denied by the trial court. Robert Ricketts appealed.
*1103 We must determine whether the trial court erred in directing a verdict on both the negligence and wantonness counts for the defendant Norfolk Southern Railway. We look first to the standard of review applicable in a case like this:
K.S. v. Carr, 618 So. 2d 707, 713 (Ala.1993).
The trial judge stated in his order that he had considered the criteria set out in Lyle v. Bouler, 547 So. 2d 506 (Ala.1989). In Lyle v. Bouler the question was whether a landowner may owe a duty of care to a trespassing minor over the age of 14. The trial court entered a summary judgment for the defendant in Lyle v. Bouler on the grounds that no duty was owed to trespassing minors over the age of 14. In reversing that summary judgment, this Court stated:
"Section 339 provides:
"Subsection (c) and the comment to § 339 provide guidance in determining when a child assumes responsibility for his injuries. The comment states that few jurisdictions still use arbitrary age limits because `in our present hazardous civilization some types of danger have become common, which an immature adolescent may reasonably not appreciate, although an adult may be expected to do so.'
Lyle v. Bouler, 547 So. 2d at 507-08.
Judge Aderholt stated that, having considered the criteria set out in Lyle v. Bouler and the various elements of § 339 of the Restatement, he had concluded that under the facts of this case there could be no liability under § 339. We therefore must determine whether Judge Aderholt erred in so holding, and in determining that we consider the factors enumerated in Lyle v. Bouler.
Eric's mother testified that Eric was an average 14-year-old boy who made average grades and who at the time of his injury had just begun the 9th grade. Eric's mother described him as "all boy" who "did what he had to do to get by." There is no evidence that Eric knew that anyone had ever been injured from being on the trestle. In fact, there was evidence that he knew that persons had ridden across the trestle with apparent impunity. There was testimony that Eric knew that an uncle of his had ridden a motorcycle across the trestle.
Under § 339, "A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one that the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children." Norfolk Southern contends that it had no knowledge at the time of the accident that children were trespassing on the trestle. However, the testimony indicates that the Brushy Creek trestle has been a local attraction for years. A Boy Scout leader, Frank Herndon, testified that he had brought scouts from Aberdeen, Mississippi, to rappel from the trestle. John Thomas Adams, whose home is located within a mile of the trestle, testified that he knew of at least four ways to reach the trestle by vehicle, primarily by 4-wheel-drive vehicles. He himself had taken sightseers to it in his pickup truck. He has seen as many as 15 people on the trestle at one time. The chief of police of the Town of Bear Creek testified that in 1991 he had specifically informed the railroad's employees, including a railroad policeman, of the fact that men, women, and children were frequently on the trestle and suggested to them that it be barricaded. On July 4, 1993, approximately two months before Eric's fall, the crossties on the trestle were set afire by fireworks that were set off on the trestle. The fire was reported to Donald Benson, a track supervisor for Norfolk Southern, who that night attempted to put it out with water from his truck. As a result of the fire, 32 ties in a row on the trestle were burned out. Howard Frye, the railroad's bridge and building supervisor, made a written report of the damage made *1105 by the fire. In his testimony, he agreed that the trestle is dangerous. Thus, there was evidence from which a jury could conclude that the criteria of § 339(a) and (b) were met in this case.
We next look at § 339(c), which both sides suggest in their briefs is the crux of this case. In Hollis v. Norfolk Southern Ry., 667 So. 2d 727 (Ala.1995), this Court held that § 339(c) "makes a lack of knowledge of the risk and a lack of ability to appreciate that risk an element of a plaintiff's prima facie case." In affirming a summary judgment for the defendant railroad in Hollis, a case in which a 16-year-old was severely injured, this Court stated:
667 So. 2d at 732. The evidence in Hollis was that the injured child, Dana Hollis, was a licensed automobile driver and had become a licensed motorcycle driver at age 14. He was injured when he fell off the edge of a railroad cut. His father testified that he had trusted his son's judgment and had allowed him latitude to make many of his own decisions. This Court concluded that the trial court properly entered the summary judgment for the railroad, because the evidence showed that Dana consciously recognized, understood, and appreciated the risk and the consequences of falling off the edge of the cut. This conclusion was based upon the testimony of both Dana and his father.
Eric cannot testify. However, Sam McGough, who was with Eric on the lead ATV, testified. Norfolk Southern cites a statement Sam made two days after the accident to a railway investigator who had been sent to McGough's home. At trial Sam McGough was questioned as follows:
Norfolk Southern emphasizes this statement as proof that Eric Ricketts fully understood and appreciated the risk of going onto the trestle. As Dean Prosser said in his article, Trespassing Children, 47 Cal. L.Rev. 427 (1959), "`appreciation' of the danger is what is required to bar recovery, rather than mere knowledge of the existence of the condition, or of some possible risk." Id. at 462. The question of a child's appreciation of danger is ordinarily one for the jury and not for the court. Patterson v. Palley Mfg. Co., 360 Pa. 259, 267, 61 A.2d 861, 865 (1948). As this Court has said:
Henderson v. Alabama Power Co., 627 So. 2d 878, 881 (Ala.1993). Thus, the question whether the criterion of § 339(c) was met was for the jury's determination.
Finally we consider § 339(d)"the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved"and § 339(e)"the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."
Norfolk Southern does not contend that it had placed any barricades or warning signs on the Brushy Creek trestle. As previously noted, several local residents testified concerning the number of visitors to the trestle. Mike Mauldin, who lives a mile from the trestle, testified that the trestle is a hangout for kids and there are two or three roads and several trails leading to it from county roads. In addition, Mauldin testified that he had seen dune buggies and motorcycles cross the trestle. He estimated that *1106 several times a month people stop at his home to ask for directions to the trestle. The Bear Creek police chief, in whose police jurisdiction the Brushy Creek trestle lies, testified not only that he had observed both adults and children on the trestle, but that in 1991 he had warned a group of Norfolk Southern employees, including a railroad policeman, that they had a problem with adults and children being on the trestle frequently.
The trial court directed a verdict both as to negligence and as to wantonness. In Henderson v. Alabama Power Co., supra, this Court explained that the duty set forth in § 339 may form the basis of a wantonness claim:
627 So. 2d at 881-82. (Emphasis original; some emphasis omitted.) The trial court erred in entering the summary judgment as to the wantonness count, because there was evidence from which a jury could legitimately infer heightened knowledge.
Norfolk Southern argues that § 339 does not apply, because it contends, Eric Ricketts was engaged in an adult activity at the time of his fall and is therefore held to an adult standard of care. The railroad cites Gunnells v. Dethrage, 366 So. 2d 1104 (Ala. 1979), in which a minor fell asleep while operating an automobile on a public highway, struck a bridge abutment, and injured his minor passenger. This Court held the minor to the same standard as all other users of the highways. Id. The "adult activity" decisions have been used to hold minors liable for injuries sustained by others, as a result of the minor's adult activity. The rationale behind those decisions is that it would be unfair to the public to apply a double standard of care to drivers on public highways, one applicable to adults and another applicable to minors. The record does not reflect that Eric was engaged in an "adult activity" within the principle of these cases.
Norfolk Southern also contends that § 339 does not apply in cases involving falls, because, it says, all children recognize the dangers from falling. In McHugh v. Reading Co., 346 Pa. 266, 30 A.2d 122 (1943), and Arbogast v. Terminal R.R. Ass'n., 452 S.W.2d 81 (Mo.1970), the risk of falling was held to be an open and obvious danger to the child, and therefore § 339(c) was held not applicable. In Lyle v. Bouler, supra, a 16-year-old boy, holding a valid driver's license, *1107 drove with a friend to a clay pit that had not been used commercially for some years. They climbed up the sides of the pit to see which of the two could climb the highest. During one climb, the two came to a ledge and sat on it to rest. Several minutes later, the ledge collapsed and the two fell 15 feet to the bottom. This Court reversed a summary judgment for the defendant landowner in Lyle v. Bouler, reasserting our adherence to § 339, Restatement (Second) of Torts (1965). This was an obvious recognition that the ultimate question was not whether the child appreciated the danger of falling, but rather was whether the child had a full knowledge of and appreciation of the risk involved.
For the reasons stated above, the judgment of the trial court based on the directed verdict for the defendant on the negligence and wantonness counts, is due to be reversed and the cause remanded for a new trial.
REVERSED AND REMANDED.
KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., concurs specially.
MADDOX, and HOUSTON, JJ., dissent.
INGRAM, J., recused.
HOOPER, Chief Justice (concurring specially).
I concur with the majority opinion. However, I write because I believe this Court should be clear in the precedent we are setting. I do not believe a reversal in this case can be justified without overruling Hollis v. Southern Ry., 667 So. 2d 727 (Ala.1995). Hollis correctly states that this Court has adopted § 339, Restatement (Second) of Torts (1965), as the legal standard for imposing liability on a landowner for harm to children that have trespassed onto the landowner's property. Hollis correctly states that § 339(c) does not impose liability on a landowner for the landowner's not protecting children "against harm resulting from their own immature recklessness in the case of known and appreciated danger." 667 So. 2d at 732 (quoting cmt. m).
The evidence in this case cannot support a finding that Eric Ricketts did not appreciate the danger he was facing. The danger of falling from a great height is obvious even to a normal 14-year-old. Eric Ricketts was a normal 14-year-old, and the record contains no evidence to support a finding that he did not fully appreciate the danger he was facing. This Court should openly state that it is modifying the Court's adoption of Restatement § 339(c) to include a limited duty of landowners to guard against children's harming themselves through their own immature recklessness. The duty would be limited by the other factors present in Restatement § 339(a),(b),(d), and (e).
This duty should be further limited to cases like the present one, where the landowner had knowledge that children had committed, and were likely to continue to commit, dangerous, immature acts on the property. Further, this duty is imposed only in cases where the landowner easily and with little burden could have eliminated the risk that children would harm themselves through immature, reckless acts that were related to the nature of the artificial condition upon the land. The reason for this duty is the known tendency of many children to carry out reckless acts and the fact that many of the harms resulting from these acts can be easily prevented at a very low cost.
Liability would be imposed only where the landowner does not have a valid affirmative defense. In this case, Norfolk Southern could easily have erected barricades and prevented this tragic event. The defendant claims that federal law prevented it from putting up the barricades. This is an issue the trial court needs to settle; however, the plaintiff should be allowed to fully present the evidence that contradicts the defendant's claim that Interstate Commerce Commission regulations prevented the barricading of the railroad.
The trial judge correctly followed the precedent set by Hollis, supra. However, this Court should openly state that by today's decision it is increasing the duty owed by landowners, so they may be placed on notice. The jury should decide whether liability is *1108 appropriate in this case. A clear standard will prevent needless litigation as to the duty of landowners in future cases of this type.
MADDOX, Justice (dissenting).
I concur in Justice Houston's dissent. I write only in order to set out specifically why I cannot distinguish this case from the Court's recent decision in Hollis v. Norfolk Southern Ry., 667 So. 2d 727 (Ala.1995), and why I believe that case controls.
In Hollis, 16 year-old Dana Joseph Hollis was severely injured while trespassing on the property of Norfolk Southern Railway. His father, individually and in Dana's behalf, sued alleging that Norfolk Southern Railway had been negligent in failing "to install a fence and to place `no trespassing' signs around the area where Dana fell" and that the place where Dana fell was an attractive nuisance. 667 So. 2d at 728. The specific facts of that case are as follows (as stated in this Court's opinion):
667 So. 2d at 729-30.
Based on that set of facts, the trial court granted Norfolk Southern's motion for summary judgment. This Court affirmed, stating that its decision did not "turn" on Norfolk Southern's knowledge of other child trespassers, but "on Dana's knowledge of the risk and his concurrent ability to appreciate that risk." 667 So. 2d at 731. It stated, "Section 339(c) [Restatement (Second) of Torts] makes a lack of knowledge of the risk and a lack of ability to appreciate that risk an element of a plaintiff's prima facie case." 667 So. 2d at 731. The Court went on to state:
667 So. 2d at 731.
The majority's opinion in the present case points out many examples of trespassing by other persons in the area where Eric Ricketts fell, but this Court pointed out in Hollis that the question of landowner liability in cases of this type does not "turn" on whether the defendant had knowledge of previous trespassers. The issue here, as in Hollis, is whether the child trespasser lacked a knowledge of the risk and/or lacked an ability to appreciate that risk.
*1110 The majority, quoting a 1959 California Law Review article, states that "`"appreciation" of the danger is what is required to bar recovery, rather than mere knowledge of the existence of the condition, or of some possible risk'" and that whether the child appreciated the danger is a question for the jury. 686 So. 2d at 1105. Even if we applied that liberal test to the facts in this case, we would be required to reach the same result we reached in Hollis. Norfolk Southern presented evidence indicating that Eric appreciated the danger, but the plaintiffs, like the plaintiff in Hollis, presented no evidence that the injured child trespasser lacked knowledge of the risk or lacked an ability to appreciate the risk. Evidence of such a lack of knowledge or lack of ability to appreciate the risk is necessary for the plaintiff to present a prima facie case under Restatement § 339. 667 So. 2d at 731.
Eric's mother testified that he was an average boy of 14 and that in school he made average grades. Eric was familiar with the bridge from which he fell. Furthermore, his companion on the day of the accident, Sam McGough, testified that before crossing the bridge Eric took off his helmet and said that if he fell off the bridge the helmet would not help him. This statement clearly shows that Eric appreciated the danger of falling off the bridge and injuring himself if he attempted to cross it. The plaintiffs presented no evidence to refute this evidence that Eric knew of, and appreciated, the risk that he could fall off the bridge. Consequently, the plaintiffs failed to meet their burden of proving an essential element under Restatement § 339 that Eric lacked knowledge of, or lacked an ability to appreciate, the risk associated with his conduct. Thus, the trial judge properly directed a verdict for Norfolk Southern, based on the rule applied in Hollis.
With the issuance of this opinion, the legal community is now faced with two conflicting holdings by the state's highest Court that I believe cannot be reconciled. I believe the majority opinion in this case incorrectly applies the law.
HOUSTON, Justice (dissenting).
I concurred in Justice Almon's case of Hollis v. Norfolk Southern Ry., 667 So. 2d 727 (Ala.1995). I cannot distinguish this case from Hollis, but I can distinguish it from Motes v. Matthews, 497 So. 2d 1121 (Ala. 1986), a case that I authored. In Hollis, we noted that the plaintiff argued, as Mr. Ricketts argues in this case, that the minor's "appreciation of the risk" was a question of fact for the jury, but we held that "because the evidence shows without dispute that Dana in fact appreciated the risk, Norfolk Southern was entitled to a judgment as a matter of law." 667 So. 2d at 732. There is evidence that Eric appreciated the risk; there is no evidence that he did not. "Section 339(c) [Restatement (Second) of Torts] makes a lack of knowledge of the risk and a lack of ability to appreciate that risk an element of a plaintiff's prima facie case." Hollis, 667 So. 2d at 731.
I would affirm the judgment of the trial court; therefore, I must dissent.
MADDOX, J., concurs. | June 14, 1996 |
ffac23ba-0e59-4c44-ae1b-a60b52fa8dd2 | Ex Parte Alfa Mut. General Ins. Co. | 681 So. 2d 1047 | 1950476 | Alabama | Alabama Supreme Court | 681 So. 2d 1047 (1996)
Ex parte ALFA MUTUAL GENERAL INSURANCE COMPANY.
(In re John B. LEDBETTER v. ALFA MUTUAL GENERAL INSURANCE COMPANY).
1950476.
Supreme Court of Alabama.
May 3, 1996.
*1048 Terry A. Sides of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for Petitioner.
James R. Bowles of Bowles & Cottle, Tallassee, for Respondent.
HOUSTON, Justice.
The defendant, Alfa Mutual General Insurance Company, petitions for a writ of mandamus ordering the trial court to set aside its order granting the Rule 60(b), Ala.R.Civ.P., motion for relief from judgment filed by the plaintiff, John B. Ledbetter. This is Alfa's second petition for a writ of mandamus concerning the same underlying fraud action.
On January 5, 1996, we issued a writ of mandamus in favor of Alfa. In our opinion, we stated:
Ex parte Alfa Mutual Gen. Ins. Co., [Ms. 1941403, January 5, 1996] ___ So.2d ___ (Ala.1996).
On August 8, 1995, after Alfa had already filed in this Court its first petition for a writ of mandamus, Ledbetter moved for relief from the judgment, under Rule 60(b)(1).[1] On November 20, 1995, the trial court granted Ledbetter's motion. Alfa then filed this second petition for a writ of mandamus, asserting that the trial court had erred in granting Ledbetter's motion for relief from the judgment.
Interlocutory orders are not ordinarily reviewable, but in certain very narrow situations courts allow immediate review of such orders,[2] the principal vehicle for immediate review being a petition for the extraordinary writ of mandamus. An aggrieved party seeking relief from an interlocutory order via a writ of mandamus must demonstrate: "(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent [in this case the trial judge] to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989) (citing Barber v. Covington County Comm'n, 466 So. 2d 945 (Ala.1985)). Clearly, Alfa is entitled to a writ of mandamus if it can demonstrate that it was denied the benefit of a final judgment in its favor in the underlying action through the trial judge's improper entry of an order purporting to grant Ledbetter's Rule 60(b) motion for relief from the judgment.[3]
In his motion seeking Rule 60(b) relief, Ledbetter asserted that he was entitled to relief from the judgment because:
Ledbetter premised his Rule 60(b) motion on his single assertion that he should be relieved from the adverse judgment in favor of Alfa because his attorney misunderstood the operative effect of Rule 59.1 and, thus, failed to file a timely notice of appeal from the judgment. It is well established under our law, however, that a mistake of law is not a ground for relief under Rule 60(b)(1). Nair v. Joshi, 578 So. 2d 1296 (Ala.1991); Daugherty Associates v. Silmon, 535 So. 2d 135 (Ala.1988). Because Ledbetter's Rule 60(b) motion offered no proper basis for granting relief from the judgment, we must conclude that the trial court's granting of that motion constituted an abuse of discretion.
WRIT GRANTED.
HOOPER, C.J., and ALMON, INGRAM, and BUTTS, JJ., concur.
[1] Although Ledbetter initially sought relief under Rule 60(b)(6), and later amended his motion to seek relief under Rule 60(b)(1), the essence of his motion was that the judgment was due to be set aside on the grounds of mistake, inadvertence, or excusable neglect. The nomenclature of a motion is not controlling under our Rules of Civil Procedure, see Ex parte Lang, 500 So. 2d 3 (Ala. 1986); therefore, we will treat Ledbetter's motion as one for relief under Rule 60(b)(1).
[2] The granting of a Rule 60(b) motion, unlike the denial of a Rule 60(b) motion, is almost always an interlocutory order, and, therefore, not immediately appealable. Any overly broad language to the contrary contained in Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So. 2d 8, 9 (Ala.1979), was clearly distinguished by this Court in Ex parte Short, 434 So. 2d 728, 730 (Ala.1983), which states:
"The grant of a Rule 60(b) motion is generally treated as interlocutory and not appealable. Fisher v. Bush, 377 So. 2d 968 (Ala.1979); Wright & Miller, Federal Practice and Procedure: Civil, § 2871 (1973). It is only in some situations that an order granting relief under Rule 60(b) is treated as a final judgment for purposes of appeal. See, Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So. 2d 8 (Ala.1979). But these situations [, where the grant of a Rule 60(b) motion leaves no proceedings to be carried out in the court granting the motion,] are the exception rather than the rule."
[3] This is true despite the fact that Alfa could appeal from any adverse final judgment entered after trial, because "we do not find an appeal in this case, after much delay and expense, to be `adequate.'" Ex parte Short, 434 So. 2d 728, 730 (Ala.1983). | May 3, 1996 |
64ece7b7-7d29-411b-aa6a-ba4217dcaf11 | State v. Johnson | 682 So. 2d 385 | 1941554 | Alabama | Alabama Supreme Court | 682 So. 2d 385 (1996)
Ex parte State of Alabama.
Re STATE
v.
James JOHNSON, Jr.
1941554.
Supreme Court of Alabama.
April 26, 1996.
Jeff Sessions, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for Petitioner.
Morris Dees and J. Richard Cohen, Montgomery, H. Dean Mooty, Jr., Montgomery, for Respondent.
*386 HOOPER, Chief Justice.
James Johnson, Jr., was indicted for the capital murder of a 16-month-old child named Jalesa. He filed a motion to suppress certain statements he had made to the police, arguing that he had been arrested without probable cause. The trial court granted the motion to suppress. The State appealed. The Court of Criminal Appeals affirmed, without opinion.
Jalesa was the child of Johnson's girlfriend, with whom Johnson was living. The child was brought by her mother to a hospital with bruises and vomiting; she was later discharged. Later that same day, paramedics were called to the residence of the mother and child, and an ambulance transported Jalesa to the hospital's emergency room. Johnson and the mother were the only persons present with the child when the paramedics arrived. The child was readmitted to the hospital. Around 8:00 p.m., doctors at the hospital telephoned and informed the police that the bruises on Jalesa appeared to be caused either by child abuse or by leukemia. Detective S.E. Cowart testified that when he arrived at the hospital he discovered that the baby had bruises on her back and hips and had three broken ribs. Detective Cowart questioned the mother, who stated that she had been grabbing the child around the ribs while holding her. The mother stated that the bruises on the child's hips were caused by her diapers.
Detective Cowart asked Johnson to go with him to the mother's apartment so that Cowart could view the apartment for suspicious physical circumstances. Johnson voluntarily went with Detective Cowart, while the mother stayed with the child. Cowart observed nothing suspicious, and he and Johnson returned to the hospital. Johnson told Detective Cowart that Jalesa had been found unconscious and that he had tried to administer CPR to her. Johnson said he could have broken her ribs at that time. Dr. Sobell, the doctor initially treating the child, told Cowart that the broken ribs could possibly have been caused by Johnson's performing CPR on the child.
Sometime between 10:25 p.m. and midnight, doctors determined that the child was not suffering from leukemia, and the doctors' opinion was that the child had been abused. Around 12:15 a.m., Detective Cowart asked Johnson to go with him to police headquarters so that Cowart could question him. The mother stayed at the hospital while the child was being treated. Johnson voluntarily went with the officer. About 1:15 a.m., Officer Cowart received notice that the child had died; he then turned the case over to the police department's robbery/homicide division.
Detective Michael Jones was then placed in charge of the investigation. Johnson had not been restrained in any manner while he was at the police station. Around 2:50 a.m., Johnson was brought into a homicide division office for questioning and there was presented with a Miranda waiver form. On the form in the space labeled "charge" were the words "capital murder." Jones questioned Johnson from 2:50 to 4:45 a.m. During the questioning, Johnson admitted to striking and shaking the child in an attempt to stop her from crying. Later, he admitted also to holding her down on a couch and placing his knee into her abdomen and chest. The only two people the police had reason to believe had been with the child were the mother and Johnson; the trial court, in fact, found that they had been the only people with the child at the time of her injuries.
In suppressing Johnson's statements, the trial judge said that the mother had given an explanation for some of the child's injuries that the detective found implausible, while Johnson had given an explanation for the child's ribs being broken that Dr. Sobell said was reasonable. Therefore, the trial judge said that the only reasonable inference from the fact of Johnson's arrest was that the detectives did not believe Johnson's explanation either. However, there existed other information from which the detectives could have determined that there was probable cause to arrest Johnson.
Johnson's explanation was that he had performed CPR on the child and thus might have broken her ribs. The child had other symptoms, such as vomiting and bruises over different parts of the body; Johnson offered *387 no explanation for these symptoms. Dr. Sobell said only that Johnson's explanation was a plausible one. The doctors concluded, sometime between 10:25 and midnight, that the child had been abused. After the doctors informed the police of this conclusion, the police knew that either the mother or Johnson or both were not telling the whole story. Therefore, the police had probable cause to arrest the mother and Johnson.
In addition, the trial judge seemed to weigh the probable cause to arrest the mother against the probable cause to arrest Johnson. The trial judge said, "[I]t does not appear that it was any more reasonable to suspect Johnson than it was to suspect anyone else who had been with the child." (R.T. 226.) The police could not explain to the trial judge's satisfaction why there was greater probable cause to arrest Johnson than there was to arrest the mother. Therefore, the trial judge decided there was no probable cause to arrest Johnson. Probable cause to arrest one person, however, does not depend on a lack of probable cause to arrest another person.
From the time the doctors concluded that the child had been abused, the police had probable cause to arrest either Johnson or the mother. This Court, in Ex parte Beck v. State, 485 So. 2d 1207 (Ala.1985), held that probable cause existed where "the defendant's truck had been seen at the [victim's] home on the afternoon of the killing" and the police had seen a pair of boots with blood splattered on them in the defendant's truck. 485 So. 2d at 1210.
The police knew that only Johnson and the mother were with the child when the paramedics arrived. Johnson gave the police an explanation for the child's broken ribsthat he had given her CPR. That did not explain the bruising and the vomiting. In addition, the record does not reveal that Jalesa was in cardiac arrest when the paramedics arrived. She was in respiratory arrest, but that does not require chest compression; it requires only breathing assistance. The fact that Johnson had given Jalesa CPR, or the fact that he had not done so, would not have required the police to exclude Johnson as a suspect. At the time, the police knew of only two people who could have committed the abuse, either the mother or Johnson or both of them. Once the doctors told the police they believed that child abuse had caused the child's injuries, the police had probable cause to detain and/or to arrest two peoplethe mother and Johnson. The fact that they chose to detain and question Johnson first was an eminently practical choice. It was a decision for the police investigators to make at the time, and if probable cause then existed to detain Johnson, the courts will not nullify the decision of the police.
Once the police have probable cause to arrest two or more people, the police make a judgment as to whom to arrest and when. Thus, the fact that the police chose not to arrest the mother, even though they had probable cause to arrest her, does not invalidate the probable cause to arrest Johnson. The police often must make discretionary decisions, which the courts will uphold unless probable cause is clearly absent. In this case, the police had to decide whom to arrest and when, considering the possibility that the mother was covering for Johnson or that one of the suspects might inform on the other if sufficient pressure was applied. In cases that involve more than two suspects, a rule requiring the arrest of all suspects for whom there was probable cause would hamstring the police. Such a rule would prevent the police from exercising the discretion they need to properly investigate a case.
The trial judge held that Johnson was arrested at 2:50 a.m. The police record indicated this as the time of arrest. The first argument the State made at the suppression hearing, which it made again on appeal, was that Johnson was not arrested until 4:45 a.m. Because we determine that probable cause was present at 2:50 a.m., as well as at 4:45 a.m., we need not determine the time of the arrest.
At 2:50 a.m., the police had probable cause to arrest Johnson. The level of evidence needed for a finding of probable cause is low. "An officer need not have enough evidence or information to support a conviction [in order to have probable cause for arrest].... `[O]nly the probability, and not a prima facie showing, of criminal activity *388 is the standard of probable cause.'" Stone v. State, 501 So. 2d 562, 565 (Ala.Cr.App.1986). "`Probable cause exists where "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed.'" Young v. State, 372 So. 2d 409, 410 (Ala.Cr.App.1979) (quoting Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 333, 3 L. Ed. 2d 327 (1959)).
Because the officers had sufficient evidence to support a finding of probable cause to arrest Johnson, and because the trial judge pitted that evidence against the evidence that would have suggested probable cause to arrest the mother, the trial judge abused his discretion in determining that there was no probable cause to arrest Johnson and that Johnson's statements were therefore inadmissible.
The judgment of the Court of Criminal Appeals affirming the trial court's order suppressing the evidence of the statements is reversed. This case is remanded, and the Court of Criminal Appeals is directed to remand the case to the trial court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
SHORES, J., concurs.
MADDOX, J., concurs specially.
COOK and BUTTS, JJ., concur in the result.
MADDOX, Justice (concurring specially).
I concur specially in order to state why I believe the warrantless arrest was valid and why I also believe the incriminating statements were not tainted by improper police conduct.
Although there could be a question whether the defendant was arrested at 2:50 a.m. or at 4:45 a.m., this does not affect the admissibility of the confession because, given all the attendant facts and circumstances, the officers had probable cause to detain Johnson at 2:50 a.m. and to question him about the death of the child. Stated differently, I can agree with the trial court that Johnson had been arrested at 2:50 a.m.,[1] but this does not make any difference in view of the fact that there was sufficient probable cause for the officers to believe, based on the facts within their knowledge, that the defendant had committed, or had aided in the commission of, the abuse of the child.
The single legal question presented in this case is: Should the defendant's statement be suppressed on the basis that it was obtained during a period of illegal detention and therefore was not the result of an independent act of free will? Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982). Thus, we must determine applying, the totality-of-the-circumstances analysis of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), whether the officers had probable cause to arrest Johnson at 2:50 a.m.
In order for a police officer to make a valid arrest without a warrant, the officer must have "probable cause to believe that a felony has been committed, or is being committed, and that the person to be arrested committed it." Rule 4.1, Ala.R.Crim.P.; see also Brooks v. City of Dothan Police Dep't, 562 So. 2d 162 (Ala.1985); Ex parte Beck v. State, 485 So. 2d 1207 (Ala.1987). In determining whether there was probable cause to make an arrest, the officers' subjective intent is immaterial. Brooks, 562 So. 2d at 163. For the purposes of this probable-cause analysis under Brooks, it is irrelevant, and in fact impermissible, to consider whether the officers intended to arrest Johnson at 2:50 a.m. or at some later time.
In determining whether the officers had probable cause to make an arrest, the Court must look at the knowledge of the officers at the time of the arrest. See Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 *389 (1983). In Gates, the United States Supreme Court abandoned the "two-pronged test" for determining probable cause under Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and adopted a "totality-of-the-circumstances" approach to determining probable cause. In setting forth the "totality-of-the-circumstances" approach, the Court stated:
462 U.S. at 231-35, 103 S. Ct. at 2330 (footnotes omitted).
Based on this test, the trial court had to determine whether at 2:50 a.m. a reasonable and prudent person possessed of the knowledge the officers had would believe that a felony had been committed (i.e., that the child had been murdered), and that the defendant, Johnson, had committed the felony or had aided and abetted its commission. For this analysis, I find it necessary to repeat the facts known to the officers at 2:50 a.m., as found by the trial judge in his order:
(Footnotes omitted.) Later in his order, the trial judge stated that the officers also knew at 2:50 a.m. that "both Johnson and McQueen had been with the child on November 4, 1992," and cited Detective Michael Jones's response to the Court's questioning during the suppression hearing. The specific testimony of Detective Jones referred to by the trial judge is as follows:
Transcript of proceedings, September 30, 1994, at p. 5. As the trial judge noted, Detective Jones, who made the actual arrest at 2:50 a.m., had been fully advised of the *391 facts of the case by Detective Cowart. Regardless of this fact, this Court has held:
Boyd v. State, 542 So. 2d 1276, 1284 (Ala.1989) (citations omitted).
The pertinent facts known to the officers, as found by the trial judge, are that Johnson and the child's mother were with the child on November 4, 1992, that the child lived with Johnson and the mother, that the child was abused, that the child died from the abuse, that the officers found the child's mother's story to be unbelievable, that Johnson admitted at the hospital that he had touched the child and probably had caused some of the injuries by, he said, performing CPR (this story also became unbelievable when the physician found the injuries to be the result of child abuse rather than leukemia).
Applying the probable cause standard set forth in Gates, I conclude that these facts and circumstances are in themselves sufficient to warrant a person of reasonable caution in believing that the child was murdered and that Johnson committed the murder or aided and abetted in its commission. As Gates states, we are dealing only with probabilities, not the more stringent standard required for a conviction. As the Supreme Court said in Gates, police officers are factfinders"practical people" permitted to formulate "certain common-sense conclusions about human behavior." 462 U.S. at 231, 103 S. Ct. at 2329. Based on the findings of fact made by the trial judge, and applying the Gates standard, I can conclude only that the officers had a right to detain and question Johnson at 2:50 a.m. Further, because of this legal right to detain Johnson, the statement given by Johnson should not have been suppressed as having been obtained during a period of illegal detention and therefore not the result of an independent act of Johnson's free will. Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982).
The trial judge stated that "it does not appear that it was any more reasonable to suspect Johnson than it was to suspect anyone else who had been with the child." However, the probable cause standard does not require that the arresting officer rule out all other possible suspects before detaining a particular person. It appears that the trial judge, in suppressing the evidence based on this statement, has applied a more stringent standard than a person of reasonable caution would believe that Johnson had committed the offense.
This Court was faced with a similar situation in Ex parte Beck v. State, 485 So. 2d 1207 (Ala.1985). In Beck, the arresting officers had been informed by a witness that he had seen the defendant's truck, not the defendant Beck himself, near the victim's home on the afternoon of the murder. The arresting officers went to Beck's home and saw his truck parked in the driveway. The officers looked into the truck and saw there, in plain view, a pair of boots that appeared to have blood on them. The officers next spoke to Beck and his wife and observed their reactions when they told them of the nature of his investigation. The Court held that this evidence was sufficient to give the officers probable cause to arrest Beck. This Court did not hold that the officers first had to determine whether Beck had lent his truck to anyone on the afternoon of the murder or to determine whether his wife had used the truck that afternoon, despite a very reasonable assumption that his wife had had access to the truck.
In the present case, the evidence creating probable cause is even stronger than the evidence in Beck. Specifically, Johnson had lived with the child, who later died of diagnosed child abuse, and he admitted at the hospital that he had touched the child in a manner that probably could have caused some of the injuries. It is also true that the mother of the abused child had physical possession of the child and it is true that she told the police an unbelievable story concerning the child's injuries. However, this did not preclude the officers from validly arresting *392 Johnson under the Gates standard, especially in light of the fact that the state recognizes accomplice murder. The fact that the prosecutor proceeded on a theory that Johnson had actually inflicted the injuries to the child does not prevent the arrest of Johnson from being valid under the theory of complicity to capital murder. The theory that Johnson was validly arrested as an accomplice to murder is especially supported by the findings of the trial judge, which suggest that the statements given to officers by both the mother and Johnson at the hospital concerning the child's injuries were unbelievable at the 2:50 a.m. arrest. I believe that a person looking at the findings of the trial court and exercising reasonable caution, could find that both the mother and Johnson were probably involved in covering up the events surrounding the child's death. This is all that is required for a valid arrest.
Based on the foregoing, I believe that the trial court applied a more stringent standard to his findings of fact than is required by the probable cause standard set out in Illinois v. Gates. I have written this special concurrence to show the reasons for that belief.
[1] I note that it was at this time that Johnson was read his Miranda rights by Homicide Detective Michael Jones and was presented with a Miranda waiver form. The form listed "capital murder" in the space labeled "charge." This would also satisfy Rule 4.1(a)(2), Ala.R.Crim.P., which provides that "[t]he law enforcement officer shall inform the person arrested of the officer's authority and the cause of the arrest."
[2] The trial judge chose not to include in his findings of fact the explanation given to the police officers by the mother regarding the bruises on the child. This explanation, as testified to by Detective Cowart, was that bruises on the child's hips had been caused by the child's diapers. | April 26, 1996 |
867b335d-e9d3-4a85-a8ba-b2cb792a06c2 | Wyser v. RAY SUMLIN CONST. CO., INC. | 680 So. 2d 235 | 1940661, 1940742 | Alabama | Alabama Supreme Court | 680 So. 2d 235 (1996)
Ralph WYSER
v.
RAY SUMLIN CONSTRUCTION COMPANY, INC., and Buddy Squire, Inc.
RAY SUMLIN CONSTRUCTION COMPANY, INC.
v.
Ralph WYSER.
1940661, 1940742.
Supreme Court of Alabama.
May 3, 1996.
Rehearing Denied July 19, 1996.
*237 Charles J. Lorant, Birmingham, for appellant/cross appellee Ralph Wyser.
Mark E. Spear of Richardson, Daniell, Spear & Upton, P.C., Mobile, for appellees/cross appellants.
INGRAM, Justice.
Ralph Wyser was injured at his place of employment when he fell into an unguarded elevator shaft. He sued Ray Sumlin Construction Company, Inc. (hereinafter "Sumlin"), for negligently failing to properly guard the elevator opening. The jury awarded $500,000 in compensatory damages, and the trial court entered a judgment. Sumlin moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court, 85 days later, on January 13, 1995, entered the following order:
On January 18, 1995, Wyser objected to the remittitur. On January 25, 1995 (97 days after the filing of the post-trial motion and 12 days after the entry of the order), the trial court attempted to set aside the jury verdict and order a new trial. Wyser appeals, and Sumlin cross-appeals.
Rule 59.1, Ala.R.Civ.P., provides that a motion under Rule 59 for a new trial must be ruled on within 90 days or else it is automatically denied. French v. Steel, Inc., 445 So. 2d 561 (Ala.1984). The ruling contemplated by Rule 59.1 is one that (1) denies the motion or (2) grants the motion, except in those cases where the time for ruling is extended as provided by the rule. French, supra. It does not anticipate, and cannot accommodate, an order to decide later whether to grant a new trial. French, supra.
Therefore, the January 25, 1995, order that purportedly granted a new trial is void. However, we must determine whether the January 13, 1995, order is to be construed as an outright denial of the motion for a new trial or simply as a conditional order that neither granted nor denied a new trial. In other words, was the motion for a new trial denied as of January 13, 1995, by order of the trial court, or was it denied on January 18, 1995, by operation of law because the January 13 order had no effect? We note that the resolution of this issue is of no consequence in the instant case, as the timeliness of the appeal is not an issue. Under either analysis, the motion for a new trial would have been denied, and the notice of appeal was timely filed. Nevertheless, we opine that the better reasoned view is that the January 13, 1995, order effectively denied Sumlin's motion for a new trial. The order is quite clear that Sumlin's motion for a new trial was denied. The fact that the trial court's order purported to order a remittitur has no effect. See Schiffman v. City of Irondale, 669 So. 2d 136 (Ala.1995) (where this Court held that an order granting a summary judgment was a final order even though the judge's order purported to grant the nonmovant an additional 28 days to present evidence). In other words, the January 13, 1995, order denied Sumlin's motion for a new trial. Any order attempting to grant a new trial or order a remittitur is void, and the jury verdict for $500,000 compensatory damages stands.
We point out that Wyser also made an "alternative argument" concerning the purported remittitur and the grant of a new trial. However, in view of our holding that the motion was denied and that there was no proper remittitur, we need not address this argument.
*238 As noted above, Sumlin cross-appealed. It presents two issues for review: (1) Whether the trial court erred in admitting into evidence certain Occupational Safety and Health Act (hereinafter "OSHA") citations and (2) whether the trial court erred in denying Sumlin's motion for a directed verdict on the issue of contributory negligence and assumption of the risk.
This Court has held that OSHA regulations, if properly introduced, may be admissible for a jury to consider in determining the standard of care that a defendant should have followed. Knight v. Burns, Kirkley & Williams Construction Co., 331 So. 2d 651 (Ala.1976). Furthermore, OSHA citations may be used to show a breach of the standard of care. Smith v. International Paper Co., 656 So. 2d 355 (Ala.1995). We also note that this Court has recently held that these citations, which are public records, are admissible under a common law exception to the hearsay rule. Smith v. International Paper Co., 656 So. 2d 355 (Ala.1995).
In support of his argument that Sumlin was negligent, Wyser submitted certain OSHA citations Sumlin had received concerning the lack of guards and railings at other construction sites. One citation had been issued one month before Wyser's accident; it concerned "floor openings that were not guarded by standard railings and toeboards or covers." The other citation related to "pits or trap door openings that were not guarded by covers of standard strength and construction or removable standard railings," and that citation also stated that "[a] fan duct pit was not covered or otherwise guarded, exposing employees to the hazard of falling ten feet to the concrete floor."
We opine that these citations are relevant to Wyser's accident. They both involved a lack of proper guarding and railing that exposed employees to the possibility of a fall. Both citations referred to the type of guards and railings that are required. Therefore, the prior OSHA violations were relevant, and evidence of them was properly admitted to show Sumlin's knowledge that proper railings and guards were required at all construction sites and to show that Sumlin knew, or should have known, that it was not meeting applicable OSHA standards.
A defendant relying on the defense of contributory negligence has the burden of proving facts supporting that defense, and it is only when the facts are such that all reasonable men must draw the same conclusion that contributory negligence is ever a question of law for the court. Marquis v. Marquis, 480 So. 2d 1213 (Ala.1985). Although contributory negligence may be found to exist as a matter of law, the question of the existence of contributory negligence is normally one for the jury. Bridges v. Clements, 580 So. 2d 1346 (Ala 1991); Knight v. Seale, 530 So. 2d 821 (Ala.1988).
Sumlin contends that Wyser created the circumstances that caused his injury and, therefore, must be found to have been contributorily negligent and to have assumed the risk of injury. We disagree. The record shows that Sumlin failed to offer substantial evidence of contributory negligence or assumption of the risk.
The judgment is reversed and the cause is remanded with instructions to reinstate the judgment of $500,000 in favor of Wyser.
REVERSED AND REMANDED.
BUTTS, J., concurs.
SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur in the result.
HOOPER, C.J., and MADDOX, J., concur in part and dissent in part.
HOUSTON, Justice (concurring in the result).
Based upon the wording of the order, I am persuaded that a new trial was timely granted. I am also convinced that the trial court erred in remitting the compensatory damages award. Pitt v. Century II, Inc., 631 So. 2d 235 (Ala.1993); Werner v. Henderson, 600 So. 2d 1005 (Ala.1992); Bridges v. Clements, 580 So. 2d 1346 (Ala.1991). Wyser suffered injuries to his left leg and knee. At the time of the injury, Wyser was a 33-year-old *239 electrician, with a 47-year life expectancy. As a result of the injury, he sustained a 20% permanent partial disability to the lower left extremitya 6% impairment to the body as a whole. He is restricted from doing work that requires him to kneel, squat, climb, crawl, or work at heights. He has undergone two operations on his knee, and he may undergo surgery in the future for additional ligament repair. His past medical expenses exceeded $22,000. He had lost substantial wages before the trial. He had been paid $10 per hour before the injury, and he was paid $5 per hour for the only work that he has been able to do since the injury (which was for only a two-month period). Wyser's wife has been the income producer for the family since his injury, and he stays home and takes care of the children. Wyser sleeps only three or four hours a night. The testimony as to pain and suffering was extensive and believable. He hurts on a daily basis. He has developed lower back problems and early arthritis because of an inability to walk without a limp.
I will go to the mat to uphold a jury's compensatory damages award, if there is no reversible error. See Wilson v. Dukona Corp., N.V., 547 So. 2d 70, 73 (Ala.1989).
MADDOX, Justice (concurring in part, dissenting in part).
Like Justice Houston, I am also persuaded that the trial court, within the time allowed by Court rule, granted a new trial in this case. Rule 59.1, Ala.R.Civ.P., provides that a motion for a new trial must be ruled upon within 90 days or else it will be deemed denied.
In this case, the record shows that the trial court entered this order within 90 days after the motion was filed:
Five days after this order was entered, the plaintiff objected to the remittitur; and seven days later (97 days after the filing of the motion), the trial judge set aside the verdict and ordered a new trial. In view of these facts, it seems clear to me that the trial court's order on the motion was entered within the time allowed, specifically, that it was entered 85 days after the motion was filed. The order provided the plaintiff with an option of accepting the remittitur, but also stated that a refusal to accept would result in a new trial. It was at this point that the motion was disposed of; this order was well within the 90 days allowed by Rule 59.1. The fact that the trial court gave the plaintiff an opportunity to accept a remittitur or have a new trial ordered in no way changes the fact that the court disposed of the motion within the time allowed by Rule 59.1.
Rule 59(f) provides that the trial court "may, on motion for new trial, require a remittitur as a condition to the overruling of the motion for new trial." Rules 59 and 59.1, like all other Rules of Civil Procedure, should be construed in light of Rule 1(c), which states that "[t]hese rules shall be construed to secure the just, speedy and inexpensive determination of every action."
Remittitur practice in Alabama has not been without confusion. In regard to remittitur, I wrote for the Court, in General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala. 1985):
"... This Court has long recognized that appellate review of remittitur `involves a review of [the] trial court's judgment based upon [the trial judge's] observation of all the witnesses who testified in the case and other incidents of the trial which cannot be reflected in the transcript and which are not available for observation by us.' Airheart v. Green, 267 Ala. 689, 693, 104 So. 2d 687, 690 (1958).
482 So. 2d at 1198-1200.
Later, the Court was faced with an issue very similar to the one presented in this case. Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), presented an appeal and a cross appeal arising out of a trial court's order of a new trial, conditioned upon the plaintiff's refusal to accept a remittitur of compensatory damages. In Hammond, the Court adopted standards for trial courts to follow when requiring a remittitur of a jury verdict. In adopting such standards the Court stated:
493 So. 2d at 1378-79.
The defendant alleges in its brief that some evidence introduced at trial indicated that the plaintiff had received some payment from other sources and that this evidence would support a remittitur or, in the alternative, a new trial. However, the trial court did not state any findings in the order to suggest why he granted the new trial or why it was conditioned on the acceptance of the remittitur.
Based on the foregoing, I cannot agree with the majority to reinstate the verdict. Because the record is silent as to the trial court's rationale for ordering the remittitur or new trial, I would remand this case for a Hammond hearing, so that this Court would have the benefit of a record containing the trial court's reasons for the ordering the remittitur. Only then could this Court properly decide whether the remittitur was appropriate or whether the jury verdict should be reinstated.
Thus, I must respectfully dissent from the judgment entered on the direct appeal (1940661), but I concur with the majority as to the cross appeal (1940742).
HOOPER, C.J., concurs.
INGRAM, Justice.
APPLICATION OVERRULED. NO OPINION.
SHORES, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., dissents, with opinion.
MADDOX, J., dissents.
HOOPER, Chief Justice (dissenting):
I would grant the application for rehearing in order to reverse the trial judge's denial of the defendant's motion for directed verdict based upon the defense of contributory negligence.
Rowden v. Tomlinson, 538 So. 2d 15, 18 (Ala. 1988); and see John R. Cowley & Brothers, Inc. v. Brown, 569 So. 2d 375 (Ala.1990).
According to the record, Wyser had worked at the Metro Jail site for approximately six months before this accident and, therefore, knew his way around the work site. Wyser's supervisor told him not to turn off the power inside the work site, but to get another worker to turn the circuits off so that Wyser would not have to walk back to his work site in the dark. Nevertheless, on the day of the accident, Wyser left his work site and turned off the circuits by himself. Wyser knew that the result would be a dark building and that he would have to walk back to his work site in the dark. Wyser did not provide himself with a flashlight, but attempted to walk back to his work site in the dark. Wyser admitted that he made mistakes, e.g., turned too early and did not watch where he was walking. He was looking up when he entered the dark doorway to what he thought was the electrical room, but which was in fact the elevator shaft.
The evidence of contributory negligence in this case is clear and undisputed. Therefore, I would hold that the trial judge erred in denying the defendant's motion for a directed verdict. Accordingly, I would grant the application for rehearing. | May 3, 1996 |
0f2df789-ad9e-40b6-b49c-d39354df3556 | Vowell & Meelheim v. Beddow, Erben & Bowen, Pa | 679 So. 2d 637 | 1940528, 1940566 | Alabama | Alabama Supreme Court | 679 So. 2d 637 (1996)
VOWELL & MEELHEIM, P.C., and J. Scott Vowell
v.
BEDDOW, ERBEN & BOWEN, P.A.
BEDDOW, ERBEN & BOWEN, P.A.
v.
VOWELL & MEELHEIM, P.C., and J. Scott Vowell.
1940528, 1940566.
Supreme Court of Alabama.
April 19, 1996.
Rehearing Denied July 19, 1996.
*638 Lee H. Zell of Balch & Bingham, Birmingham, and Susan S. Wagner of Berkowitz, Lefkovits, Isom & Kushner, Birmingham, for Vowell & Meelheim, P.C.
Dennis G. Pantazis and Brian M. Clark of Gordon, Silberman, Wiggins & Childs, P.C., Birmingham, for Beddow, Erben & Bowen, P.A.
INGRAM, Justice.
These appeals arise out of a dispute between lawyer J. Scott Vowell and Vowell & Meelheim, P.C., and Beddow, Erben & Bowen, P.A. ("Beddow"), regarding the division of the legal fees received in four contingency fee cases. The trial court conducted an ore tenus proceeding and issued a comprehensive order containing a detailed statement of the facts as well as an exhaustive discussion of the applicable law. The trial court entered a judgment against Vowell and the Vowell firm and in favor of the Beddow firm, in the amount of $220,891.15. Specifically, the trial court held that Vowell was entitled only to the percentage of the fees recovered that he would have received had he stayed with the Beddow firm, plus a reasonable hourly rate for the time he spent in completing the work on the four cases.[1] Vowell and the Vowell firm appeal, and Beddow cross appeals.
At the outset we note that the trial court's findings of fact will not be disturbed unless they are clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Marvin's, Inc. v. Robertson, 608 So. 2d 391 (Ala.1992). Furthermore, this Court will not presume error and will affirm the trial court's judgment if it is supported by any valid legal ground. Marvin's, Inc., supra.
The facts, as found by the trial court, are as follows: J. Scott Vowell was first employed as a law clerk in 1960 by the Beddow law firm, which was then a partnership known as Beddow, Embry & Beddow. After Vowell's graduation from law school in 1961, he was employed as an attorney by that same law firm, and he became a partner in the early 1970s.
*639 In 1978, the structure of the Beddow firm was changed from a partnership to a professional association. Its partners became shareholders, officers, and directors of the new professional association, which took the name Beddow, Fullan & Vowell, P.A. In 1987, Vowell's percentage participation in the profits of the firm was 21%.
In 1987, the law firm employed Richard Meelheim and Gregory McKay as associates. Vowell, Meelheim, and McKay represented plaintiffs in personal injury cases and other civil cases. In August of that year, Vowell informed Bowen and Beddow that Vowell, Meelheim, and McKay were leaving the Beddow firm. Vowell and Meelheim began contacting clients of the Beddow firm to secure their agreement to be represented by Vowell and his new firm. These contacts were made either in writing or by telephone in September 1987, while Vowell was still a shareholder, officer, and director of the Beddow firm and were made without the knowledge or consent of the other shareholders. The contacts were made from the offices of the Beddow firm. Vowell never advised the other members of the firm that he was meeting with the clients with respect to Vowell's departure from the firm and his representing them in the future.
Vowell, Meelheim, and McKay moved out of the Beddow firm's offices on October 1, 1987. Included in the materials moved were the lawyers' files on the four cases in dispute here. The trial court found from the evidence that there was never any agreement among the attorneys concerning the distribution of the fees to be earned from these four cases.
Vowell and Meelheim reached an agreement with the four clients that the Vowell firm would represent each of them. The four clients effectively terminated the Beddow firm as counsel for them.
The dispositive issue on appeal is whether the trial court erred in its division of the contingent fees earned from the four cases at issue. Specifically, in regard to these four cases, did Vowell breach any fiduciary duty or obligations to the Beddow firm, and, if so, what would be the appropriate division of legal fees that were recovered from the four cases?
Citing Chief Judge Benjamin Cardozo's opinion in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928), as well as Meehan v. Shaughnessy, 404 Mass. 419, 535 N.E.2d 1255 (1989), the trial court held that Vowell owed fiduciary obligations to the Beddow firm and that, if there was any conflict, it was Vowell's duty as a fiduciary to consider the interest of the Beddow firm first.
In Meehan, Meehan and Boyle were partners in a law firm. They decided to leave that firm and form their own law partnership. Planning to leave the old firm, both began making lists of clients and of referring attorneys involved in cases they were handling. The trial court held that Meehan and Boyle did not breach the fiduciary duty owed to their partners. However, the Supreme Judicial Court of Massachusetts reversed, holding that Meehan and Boyle did breach their fiduciary duties. Specifically, that court stated:
404 Mass. at 436, 535 N.E.2d at 1264. (Citation omitted.)
As stated by the trial court, while the meetings between Vowell and Meelheim and the four clients may not have been secret or surreptitious, the meetings were not disclosed to the other lawyers in the Beddow firm. We agree with the trial court that Vowell breached his fiduciary obligations owed to the Beddow firm, by contacting clients of that firm and obtaining employment as the attorney for those clients while he was still an officer, director, and shareholder of that firm.
*640 As concerns the division of the legal fees earned, we note that we have not found, nor have the parties cited, any Alabama case directly on point concerning the proper disposition of contingent fees earned in a case taken by a withdrawing lawyer. However, as the trial court held, a majority of jurisdictions have followed the approach articulated by the California cases of Jewel v. Boxer, 156 Cal. App. 3d 171, 203 Cal. Rptr. 13 (1984), and Fox v. Abrams, 163 Cal. App. 3d 610, 210 Cal. Rptr. 260 (1985). This view rests on the principle that pending contingent-fee cases are assets of the originating firm and that lawyers practicing together have a continuing fiduciary duty to each other and the firm.
The trial court held that in the absence of an agreement by partners of a law partnership or shareholders of a law professional association, the majority rule requires that legal fees earned from clients of the partnership or professional association be divided according to the interest of each partner in the partnership or the interest of each shareholder in the professional association. See, e.g., Jewel v. Boxer, 156 Cal. App. 3d 171, 203 Cal. Rptr. 13 (1984); Fox v. Abrams, 163 Cal. App. 3d 610, 210 Cal. Rptr. 260 (1985); Kreutzer v. Wallace, 342 So. 2d 981 (Fla.Dist. Ct.App.1977); Kirsch v. Leventhal, 181 A.D.2d 222, 586 N.Y.S.2d 330 (1992); Platt v. Henderson, 227 Or. 212, 361 P.2d 73 (1961); Sullivan, Bodney & Hammond v. Bodney, 16 Kan.App.2d 208, 820 P.2d 1248 (1991); Frates v. Nichols, 167 So. 2d 77 (Fla.Dist.Ct. App.1964); Ellerby v. Spiezer, 138 Ill.App.3d 77, 92 Ill.Dec. 602, 485 N.E.2d 413 (1985); Resnick v. Kaplan, 49 Md.App. 499, 434 A.2d 582 (Ct.Spec.App.1981).
In Jewel v. Boxer, the trial court allocated fees among former partners of a law partnership based on results obtained and time expended. The Court of Appeals of California reversed the trial court's ruling, holding that, absent a contrary agreement, any income generated through the winding up of unfinished business was required to be allocated to the former partners according to their respective interests in the former partnership. The court stated that this approach discouraged former partners from soliciting the partnership's clients and scrambling for possession of client files.
In Fox v. Abrams, the California Court of Appeals applied the same approach to lawyers who had been employees of a law corporation. There, two of the four lawyers employed by the law corporation formed a new law corporation, taking with them approximately 70 of the old corporations's clients. The trial court concluded that the old corporation was entitled only to a quantum meruit recovery for the reasonable value of any services that may have been performed on those cases before the two lawyers terminated their relationship with the old corporation. However, on appeal, the California Court of Appeals reversed, applying the same approach that was applied in Jewel v. Boxer. It held that compensation for completing the work in the 70 cases should be allocated among the attorneys in accordance with the percentage interest each attorney had had in the old corporation.
Applying the majority rule, the trial court held that Vowell was entitled to the percentage of fees that he would have been entitled to under the arrangement he had had with the Beddow firm (21%). However, the trial court made an equitable adjustment in this majority rule. In order to adjust the allocation of fees to achieve what the trial court deemed a fair result for all concerned, it held that Vowell would be allowed a reasonable hourly rate for the time spent by the Vowell firm in completing the work on the four cases. Specifically, the trial court found that a reasonable rate for Vowell's time in 1987 would have been $125 per hour. Therefore, based on the total fee the Vowell firm had received in each of the four cases at issue here, the trial court calculated Vowell's compensation for the hours spent on each case, plus Vowell's 21% interest in the fees, and then calculated the total amount due the Beddow firm, plus interest.
We have reviewed the record, as well as the carefully reasoned and well-written order of the trial court, and we find no error in the division of the legal fees earned. The judgment is affirmed.
*641 1940528AFFIRMED.
1940566AFFIRMED.
HOOPER, C.J., and ALMON, HOUSTON, and BUTTS, JJ., concur.
[1] The trial court held that a reasonable rate for Vowell's time in 1987 would have been $125 per hour. | April 19, 1996 |
211bd63e-0512-475e-a82a-cee56b6edfcd | Pilcher Land Corp. v. Johns | 677 So. 2d 746 | 1931752 | Alabama | Alabama Supreme Court | 677 So. 2d 746 (1996)
PILCHER LAND CORPORATION, et al.
v.
Adrian T. JOHNS, et al.
1931752.
Supreme Court of Alabama.
March 15, 1996.
John E. Pilcher and E. Elliott Barker of Pilcher & Pilcher, P.C., Selma, and John W. Kelly III, Selma, for Appellants.
M. Kathryn Knight of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for Johns, Nix & Koontz.
Claude E. Patton, Alabama Department of Revenue Legal Division, Montgomery, for the State Treasurer and the Commissioner of the Department of Revenue.
INGRAM, Justice.
Associated Gulf Land Corporation, John E. Pilcher, Jody T. Pilcher III, Emmie S. Pilcher, Mary E. Pilcher; and Pilcher Land Corporation and Anne G. Pilcher, as executors of the estate of Joe T. Pilcher, Jr., deceased (hereinafter "taxpayers"), filed a seven-count complaint against the Baldwin County tax assessor, the Baldwin County tax collector, and the Baldwin County Commission (hereinafter "Baldwin County tax officials") and against the State Department of Revenue and the treasurer of the State of Alabama (hereinafter "State tax officials"). The taxpayers sought a judgment declaring that as a result of the withdrawal of the favorable "current use" rate of taxation for seven parcels of land, the State and county tax officials had violated the taxpayers' rights to due process and equal protection guaranteed under the Fourteenth Amendment to the United States Constitution and Amendment 373 to the Alabama Constitution. The taxpayers also requested certification of a class of plaintiffs; that request was denied.
The Baldwin County and State tax officials moved for summary judgments, contending that the taxpayers could not establish the essential elements of their claims. The trial court entered a summary judgment for each set of tax officials with respect to all claims. The plaintiffs appeal.
The dispositive issue on appeal is whether the tax assessor erred in revoking *747 the taxpayers' current-use valuation on the parcels in question.
In 1989, the tax assessor received complaints from taxpayers within his jurisdiction concerning alleged abuses of the current-use statutes. Accordingly, the tax assessor reviewed all parcels that were receiving current-use treatment, in order to determine whether they should be allowed to continue to receive the tax benefits of the current-use statutes. The current-use applications on file for the parcels in question requested current-use treatment on the basis that the parcels were timberland. Upon review, the tax assessor found that the parcels did not qualify for current-use treatment because several parcels contained only scattered pines, which were small and not being harvested; one parcel was a lot with a summer home and had no trees; and the other parcels were Gulf-front lots with no trees.
The tax assessor revoked the current-use status of the parcels in question and reclassified them from Class III property to Class II property. However, because of a question of proper notification to the taxpayers, the current-use elections for 1991 were reinstated, but the tax assessor's office simultaneously informed the taxpayers that the current-use elections would be disallowed for the tax year 1992.
In 1992, all parcels in Baldwin County were reviewed by the tax assessor for assessment purposes. The plan adopted by the tax assessor was utilized throughout the county, and all parcels having current-use benefits were evaluated and classified on their own merits. The plan did not target any particular area of the county to review, but rather reviewed all parcels. Any property that did not meet the definition of Class III property had the current-use elections disallowed. After a review of the property, taxpayers were notified of the assessment of their property by valuation notices mailed to the property owners. These notices contained, among other things, the parcel number; the classification of the parcel; a statement as to whether the property was assessed at its fair market value or at another value, such as current use; and the estimated tax for that tax year. Specifically, the notice provided:
The taxpayers did not request a hearing before the tax assessor, but instead requested a hearing before the board of equalization ("board"). After the board denied the requested relief, the taxpayers filed this declaratory judgment action.
In Alabama, all property is divided into four classifications for purposes of ad valorem taxation. See Ala.Code 1975, § 40-8-1. As a general rule, for the purpose of assessment, real and personal property is to be appraised at its fair and reasonable market value. § 40-7-15. However, upon a request by the owner of certain property, the assessor may base the appraisal of the value of the property on its current use and not on its fair and reasonable market value. To qualify for current-use assessment, property not only must be the subject of an application, but also must qualify under the terms of the statute. Owners of agricultural and forest property, single-family property, owner-occupied residential property, and historic buildings that qualify for treatment as Class III property are given the option of having their property appraised at either its fair market value or its current-use value. Ala. Code 1975, § 40-7-25.1(a). The current-use method reflects only the value of the property based on the use being made of the property at the time of appraisal. Ala.Code 1975, § 40-7-25.1.
Pursuant to § 40-7-1 et seq., the tax assessor has the right and authority not only to assess all real estate but also to prescribe the proper bookkeeping method to be used in determining the assessment. If for any reason a manifest error is found in the calculation of the amount of taxes due, or if any mechanical error is found in the computation *748 of the tax due, the tax assessor is authorized to correct the error. § 40-7-9. Clearly, the tax assessor has the authority to reclassify property. Daffin v. Scotch Lumber Co., 226 Ala. 33, 145 So. 452 (1933).
The record reveals that the tax assessor determined, pursuant to the applicable statute, that the parcels of land in question did not qualify for current-use valuation and, therefore, appraised them based on their fair market value. Further, the record reveals that the taxpayers received adequate notice of this valuation and were afforded an opportunity to contest the assessments. The taxpayers presented no evidence that the classification of the parcels in question was incorrect. In other words, the taxpayers presented no evidence that the parcels in question were entitled to the benefits of the current-use law.
The judgment is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur. | March 15, 1996 |
98d9c98b-f95b-48ab-adc5-c9848cbe65dd | Koullas v. Ramsey | 683 So. 2d 415 | 1951452 | Alabama | Alabama Supreme Court | 683 So. 2d 415 (1996)
Chris KOULLAS and Fashion Rite, Inc.
v.
Hazel RAMSEY, et al.
1951452.
Supreme Court of Alabama.
October 18, 1996.
*416 Samuel H. Franklin and E. Glenn Waldrop, Jr., of Lightfoot, Franklin & White, L.L.C., Birmingham, for Appellants.
John I. Cottle III of Bowles & Cottle, Tallassee, for Appellees.
BUTTS, Justice.
Chris Koullas and Fashion Rite, Inc., appeal from the trial court's denial of their motions to compel arbitration and to stay proceedings pending arbitration of claims brought against them by Hazel Ramsey and Apparel Creations of America, Inc.
Hazel Ramsey incorporated Apparel Creations of America, Inc. ("Apparel Creations"), in October 1987, and all of its 100 shares of stock were issued to her. Shortly thereafter, she entered into a contract to sell and transfer 60% of her Apparel Creations stock to Chris Koullas. The contract included a clause providing that disputes between the parties arising under the contract would be determined by arbitration. The sale and transfer of stock were completed according to the terms of the contract in 1987.
In 1988, Koullas became a director of Apparel Creations and served in that capacity for the next eight years. In 1996, Hazel Ramsey and Apparel Creations (hereinafter collectively referred to as "Ramsey") filed this action against him, alleging conversion, usurpation of corporation opportunity, and breach of fiduciary duty, all arising from his activities as a corporate director of Apparel Creations. Ramsey claimed that Koullas had siphoned off substantially all the profits of the corporation and had converted them for his personal gain, thereby oppressing Hazel Ramsey's right as a minority shareholder to receive dividends. Ramsey further claimed that Koullas usurped Apparel Creations' corporate opportunities by using a large portion of its profits to establish and develop a separate corporation, Fashion Rite, Inc., in which he was the sole shareholder; Ramsey included Fashion Rite, Inc., as a defendant in regard to this claim. Ramsey also alleged that Koullas had breached his fiduciary duty as a corporate director by structuring business dealings that placed the interests of Fashion Rite and himself over those of Apparel Creations and Hazel Ramsey as its minority stockholder.
Koullas and Fashion Rite moved to compel arbitration of Ramsey's claims pursuant to the arbitration clause contained within the 1987 contract under which Hazel Ramsey had sold and transferred 60% of the stock of Apparel Creations to Koullas. Ramsey opposed the motion, arguing that these claims did not arise under the terms of that contract and were therefore not subject to the arbitration clause contained therein. After a hearing, the trial court denied the defendants' arbitration motions.
The Federal Arbitration Act, 9 U.S.C. § 2 et seq., mandates arbitration of a claim where a contract contains a written agreement calling for arbitration and where the contract evidences a transaction involving interstate commerce. The parties stipulate that the contract for the sale of stock between Hazel Ramsey, an Alabama resident, and Chris Koullas, a Georgia resident involved interstate commerce. The issue here is whether the arbitration clause contained within that contract applies to claims based upon Koullas's alleged activities as an Apparel Creations corporate director.
The strong federal policy favoring the enforceability of arbitration contracts is designed to place arbitration agreements on *417 the same footing as any other contract. Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). Like any other contract, an arbitration agreement must be enforced in accordance with its terms; both federal and state courts have consistently recognized that the duty to arbitrate is a contractual obligation and that a party cannot be required to arbitrate any dispute that he or she has not agreed to arbitrate. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986); A.G. Edwards & Sons v. Clark, 558 So. 2d 358 (Ala.1990). Whether an arbitration agreement applies to a dispute between the parties is to be determined by the language of the contract entered into by the parties. Blount Int'l, Ltd. v. James River-Pennington, Inc., 618 So. 2d 1344 (Ala.1993).
In the event of an ambiguity or uncertainty over the applicability of an arbitration clause, federal policy dictates that it be resolved in favor of arbitration. Allied-Bruce. However, this Court will not stretch the language of a contract to apply to matters that were not contemplated by the parties when they entered the contract. Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343 (11th Cir.1982). To determine whether the arbitration clause applies to this dispute, we must consider the intent of the parties, as it is expressed in the language of the capital stock sales contract.
It is undisputed that the contract was intended to be the instrument for Hazel Ramsey's sale of capital stock in Apparel Creations to Koullas. It was entitled "Agreement for Sale and Transfer of Capital Stock," and it stated:
After this statement of intent, the contract set out the purchase price of the stock and the method of its payment. It then recited a number of warranties reflecting that, at that time, Apparel Creations was a properly organized corporation whose shares were free of liens. It reflected certain assets and liabilities of the company and contained detailed provisions requiring Hazel Ramsey to indemnify Koullas, and/or Apparel Creations, for any loss caused by any undisclosed indebtedness of the corporation, prior to the sale of stock. The contract also verified that Koullas had conducted his own inspection of Apparel Creations' property and was not relying solely on Hazel Ramsey's representations in buying the stock. The parties acknowledged that their respective representations would survive the closing of the sale and that each would have certain rights and responsibilities in the event of loss or destruction of corporate assets before the closing of the sale.
After detailing the documents to be delivered at the closing, the contract included the following arbitration clause:
(Emphasis added.) The contract concluded by stating the time and place for closing the sale of Apparel Creations stock to Koullas.
Where, as here, an arbitration clause refers to disputes or controversies "arising under" an agreement, the clause will apply only to those claims arising under the terms of the agreement, and it will not extend to matters or claims independent of, or *418 merely collateral to, the agreement. Old Republic Ins. Co. v. Lanier, 644 So. 2d 1258 (Ala.1994). We agree that, in order for a dispute to be characterized as arising out of or relating to the subject matter of the contract, and thus subject to arbitration, it must at the very least raise some issue that cannot be resolved without a reference to or construction of the contract itself. Dusold v. Porta-John Corp., 167 Ariz. 358, 807 P.2d 526 (Ct.App.1990); Terminix Int'l Co., L.P. v. Michaels, 668 So. 2d 1013 (Fla.Dist.Ct.App. 1996); Greenwood v. Sherfield, 895 S.W.2d 169 (Mo.App.1995). If there is no such connection between the claim and the contract, then the claim could not reasonably have been intended to be subject to arbitration within the meaning of a clause that required arbitration only for claims "arising out of or related to" the contract. Dusold.
Koullas has not established such a connection here; Ramsey's claims against him as a corporate director do not require for their resolution a reference to or a construction of the sales contract. Nothing in the contract addresses the manner and method by which Apparel Creations was to be managed after the sale of the stock. It does not name Koullas as a corporate director, and it does not even mention how the shareholders would be involved within the corporation. It does not address the amount of salaries, commissions, or dividends that would be paid to corporate officials or stockholders. It is silent as to any duties or responsibilities that the parties would owe to the corporation after the sale and transfer of the stock. Simply put, every term of the contract relates exclusively to some aspect of the one-time sale of corporate stock, which was completed in 1987, before Koullas even became a corporate director of Apparel Creations.
If Ramsey was alleging any wrongdoing in the making of the sales contract or in its performance, or was alleging violation of its provisions, then Ramsey's claims might reasonably be said to "arise under" the contract and therefore be subject to the limited arbitration clause contained therein. As it is, Ramsey's allegations against Koullas arise solely from his actions as a corporate director, not as a buyer of stock under the sales contract.
In an attempt to show some connection between the sales contract and Ramsey's claims, Koullas emphasizes that it was the sales contract that effectively established Hazel Ramsey as the minority shareholder in Apparel Creations, and that she has brought this action both as an individual and as a minority stockholder in the company. He concludes that this is sufficient to establish that her claims "arise under" the contract, regardless of the fact that its provisions are limited to the terms of sale. We do not agree.
While federal law favors arbitration where a reasonable interpretation of the arbitration agreement would cover the dispute, Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983), the necessary relationship between the dispute and the contract is not established simply by the fact that the dispute would not have arisen absent the existence of a contract between the parties. A.G. Edwards & Sons, Inc. v. Clark, supra, citing with approval Armada Coal Export, Inc. v. Interbulk, Ltd., 726 F.2d 1566 (11th Cir.1984). We cannot reasonably conclude that every claim that tangentially relates to Hazel Ramsey as a minority shareholder necessarily "arises under" the sales contract, merely because the contract effectively placed her in that position. "[S]uch [a] connection is not sufficiently close to constitute a dispute arising during the execution, or performance," of the sales contract. Armada Coal Export, at 1568.
The trial court correctly determined that Ramsey's claims did not arise under the 1987 contract and that they are not subject to the arbitration clause therein. Its order denying the defendants' arbitration motions is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur. | October 18, 1996 |
b731fe1f-2dbc-49e2-8fc1-ead8a7195fa5 | Ex Parte Gauntt | 677 So. 2d 204 | 1940591 | Alabama | Alabama Supreme Court | 677 So. 2d 204 (1996)
Ex parte Mary L. GAUNTT, et al.
(Re Mary L. GAUNTT, et al. v. UNITED INSURANCE COMPANY OF AMERICA, et al.).
1940591.
Supreme Court of Alabama.
February 9, 1996.
Order Overruling Second Application for Rehearing May 3, 1996.
*206 Fred D. Gray of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee; Allen W. Howell of Shinbaum & Howell, Montgomery, for Petitioners.
Warren B. Lightfoot, Mac M. Moorer and William H. Brooks of Lightfoot, Franklin, White & Lucas, Birmingham, for Respondents.
Phillip E. Stano, Washington, DC; Cathy S. Wright and Sarah E. Yates of Maynard, Cooper & Gale, P.C., Birmingham, for Amicus Curiae American Council of Life Insurance.
SHORES, Justice.
The opinion issued on July 14, 1995, is withdrawn and the following opinion is substituted therefor.
A judge of the Macon Circuit Court has ordered that 16 pending civil actions filed in Macon County against United Insurance Company of America ("United"), Unitrin, Inc., United Casualty Insurance Company of America, Union National Life Insurance Company, and Union National Fire Insurance Company be transferred to Shelby County for trial. The plaintiffs, whose actions are based on various contract and fraud claims, have petitioned for a writ of mandamus directing the trial judge to set aside his transfer orders. None of the plaintiffs resides in Macon County, although United does business there. The plaintiffs reside in the central Alabama counties of Elmore, Montgomery, Chilton, and Tallapoosa.
The defendants filed a motion to transfer the cases to Shelby County, based on allegations of improper venue and premised upon the assertion that United's regional manager, George McDonald, resides in Shelby County. The defendants relied on and cited § 6-3-7, Ala.Code 1975,[1] and Ex parte Macon County Greyhound Park, Inc., 634 So. 2d 997 (Ala. 1993) (venue proper in county where alleged wrongful act occurred, not where resulting nonbodily injuries occurred). In the alternative, the defendants moved for a transfer pursuant to the doctrine of forum non conveniens as codified at Ala.Code 1975, § 6-3-21.1.
The plaintiffs argued that the clause in § 6-3-5 providing that "an action against a foreign insurance corporation shall be commenced only in a county where it does business" makes venue proper in Macon County, where United, a foreign corporation, does *207 business. The trial judge concluded that § 6-3-5 did not establish proper venue in Macon County, and he transferred the cases. His transfer order, dated December 22, 1994, reads as follows:
The writ of mandamus is an extraordinary remedy. One seeking it must show: "(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991); Ex parte Johnson, 638 So. 2d 772, 773 (Ala.1994). The writ of mandamus will issue to correct an erroneous ruling on a motion to transfer a case. Elmore County Comm'n v. Ragona, 540 So. 2d 720 (Ala.1989). The essential question in our consideration of a petition for the writ of mandamus in this context is whether the county in which the action was brought was a proper venue. Id.; Ex parte *208 Wilson, 408 So. 2d 94 (Ala.1981); Ex parte Maness, 386 So. 2d 429 (Ala.1980).
Whether Macon County is a proper venue for these cases depends on whether a complaint alleging both contract and tort claims against a foreign corporation may be brought in a county in which it does business, even though the plaintiff does not reside there. These plaintiffs are bringing contract and fraud actions against foreign insurance corporations and their agents, directors, and officers. Accordingly, this Court considers § 6-3-5, establishing venue for a civil action by a policyholder against an insurer; § 6-3-7, establishing venue rules for actions against foreign and domestic corporations; and Amendment No. 473, Ala. Const.1901, equating domestic and foreign corporations for purposes of venue.
The plaintiffs, relying on Ex parte City of Fayette, 611 So. 2d 1032 (Ala.1992), overruled on other grounds, Ex parte Alabama Power Co., 640 So. 2d 921, 924 (Ala.1994); and Ex parte Bloodsaw, 648 So. 2d 553 (Ala.1994), argue that venue is proper in Macon County or in any other county where a foreign corporate defendant does business. Neither of these cases is authority for this proposition, and the plaintiffs' argument fails to acknowledge the significance of Amendment No. 473. The defendants argue that each complaint alleges only personal actions and that § 6-3-7, Ala.Code 1975, makes venue proper only (1) where the plaintiff resides, if the defendant does business there, or (2) where the wrongful act occurred. This argument fails because the complaints allege contract as well as "personal injury" claims under § 6-3-7, and contract claims are not subject to the personal injury clause of § 6-3-7. A review of the statutory history is helpful in resolving this issue.
In 1886, Alabama's corporate venue statute, codified at Ala.Code 1886, § 2642, provided that "[a] foreign or domestic corporation may be sued in any county in which it does business by agent." The statute was first passed on February 13, 1879. Ala.Acts 1879, No. 166, p. 197. In Montgomery Iron Works v. Eufaula Oil & Fertilizer Co., 110 Ala. 395, 20 So. 300 (1896), the Court held that the statute was not mandatory: the language did not exempt a corporation from being sued, in an action not in contract, in a county in which it was not doing business by agent. The Court construed this statute in pari materia with § 2640, prescribing that personal actions, other than those on contracts, could be brought "in the county in which the act or omission complained of may have been done."
The corporate venue statute appeared unchanged as § 4207, Ala.Code 1896, but the legislature amended the venue provision in 1903 by adding "but all actions for personal injuries must be brought in the county where the injury occurred, or in the county where the plaintiff resides, if such corporation does business by agent in the county of plaintiff's residence." Ala.Acts 1903, No. 174, p. 182, codified at Ala.Code 1907, § 6112. The statute did not distinguish between foreign and domestic corporations. The statute required that a personal injury action against a foreign corporation, as well as one against a domestic corporation, be brought in the county in which the injury occurred or in the county of the plaintiff's residence if the corporation did business by agent there. Alabama Great Southern Ry. v. Ambrose, 163 Ala. 220, 50 So. 1030 (1909) (action by administrator based on personal injury resulting in death to his intestate proper only "in county where the injury occurred, or the county where the plaintiff resides"), overruled, Ex parte Western Union Telegraph Co., 200 Ala. 496, 76 So. 438 (1917). Other cases construing the statute in this period were American Coal Corp. v. Roux, 192 Ala. 574, 68 So. 970 (1915), holding that, for personal injury actions, § 6112 made venue proper in the county where the injury occurred, regardless of whether the corporation did business by agent in that county and regardless of plaintiff's residence; and Drennen Motor Car Co. v. Evans, 192 Ala. 150, 155-56, 68 So. 303, 305 (1915), holding that venue of all personal actions, other than those for personal injuries, against a domestic corporation, is: (1) in the county of the residence or of the situs of the corporation; or (2) in the county where such corporation does business by agent; or *209 (3) in the county in which the act or omission complained of may have been done or may have occurred.
In Ex parte Western Union Telegraph Co., 200 Ala. 496, 76 So. 438 (1917), this Court held that, because the Alabama Constitution of 1901, § 232, expressly provided for statewide venue of actions against foreign corporations,[2] the legislature had no power to limit or expand venue in personal injury actions against a foreign corporation to the county of the injury or to the county of the plaintiff's residence, thus nullifying the statutory amendment of 1903. Later, in 1919, the legislature again amended the statute to provide that a domestic or foreign corporation could be sued not only "in any county in which it does business by agent," but also in any county in which it "was doing business by agent at the time the cause of action arose." Ala.Acts 1919, No. 254, p. 240. Codified at Ala.Code 1923, § 10471, then, was the following (with the modified portions emphasized):
The language of the primary clause still conflicted with § 232, however. In Bolton v. White Motor Co., 239 Ala. 168, 194 So. 510 (1940), this Court held that § 232 limits venue of actions against a foreign corporation to a county where the corporation is doing business at the time the action is brought and service is had. Bolton, 239 Ala. at 171, 194 So. at 512. Accordingly, the statute as reenacted at Ala.Code 1940, Title 7, § 60, read (with the modified portion emphasized):
In 1955, the legislature adopted an act applicable only to insurers. Ala.Acts 1955, No. 365, p. 886. The act was codified at Ala.Code 1940 (Recomp.1958), Title 7, § 56(1):
Section 2 of the Act provided that "[a]ll laws or parts of laws which conflict with this Act are repealed." The general venue statute for corporations remained unchanged.
The two statutes have been changed slightly by the legislature since 1958. The general corporate venue statute, codified at Ala.Code 1975, § 6-3-7, provides:
(Emphasis added; the "provided, that" replaced "but"). The insurance corporation statute (currently § 6-3-5) provides:
(Emphasis added).
Significant to the operation of these statutes is Amendment No. 473, amending § 232 of the Alabama Constitution; that amendment was ratified April 1, 1988. This amendment equates domestic and foreign corporations for purposes of venue. See Ex parte Allen, 655 So. 2d 962 (Ala.1995); Ex parte Townsend, 589 So. 2d 711 (Ala.1991); Ex parte Southern Ry., 556 So. 2d 1082, 1091 (Ala.1989). With the language added by the 1988 amendment emphasized, § 232 of the Constitution now provides:
(Emphasis added). This emphasized language replaced a sentence reading "Such corporation may be sued in any county where it does business, by service of process upon an agent anywhere in the state." For a discussion of the history of Amendment No. 473, see Robert D. Hunter, Alabama's 1987 Tort Reform Legislation, 18 Cumb.L.Rev. 281 (1988).
Venue, as distinguished from jurisdiction, is a legislative determination based upon the presumed convenience of the parties. Ingram v. Omelet Shoppe, Inc., 388 So. 2d 190 (Ala.1980). In Alabama, "the venue of actions is governed by statute, and only in the event of inconsistency in statutory provisions, by Rule 82." Ex parte Lashley, 596 So. 2d 890, 891 (Ala.1992).[3] We do not find an inconsistency, but, even if we did, we would note the mandate of § 6.11 of the Judicial Article, which requires this Court to promulgate rules of procedure that "shall not *211 abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein." We find no inconsistency in the operation of §§ 6-3-5 and 6-3-7 that would require us to refer to procedural rules.
Section 6-3-5 is specifically related to insurance companies. This specific statute would apply exclusively to these cases if it conflicted with § 6-3-7, the general corporate venue statute. See Crawford v. Springle, 631 So. 2d 880 (Ala.1993) (where statutes in pari materia are general and specific, the more specific statute controls the more general statute). This Court finds no conflict between § 6-3-5 and § 6-3-7; accordingly, these corporate venue statutes should be read in pari materia. Cf. Ex parte New England Mutual Life Insurance Co., 663 So. 2d 952 (Ala.1995) (holding that § 6-3-5 does not exclusively govern contract actions against an insurance corporation and that § 6-3-7 does not exclusively govern personal injury actions against an insurance corporation); Opinion of the Justices No. 334, 599 So. 2d 1166 (Ala.1992) (statutes must be construed together in light of their application to the same general subject matter); Associated Grocers of Alabama v. Graves Co., 272 Ala. 158, 130 So. 2d 17 (1961) (construing predecessor of § 6-3-7 in pari materia with predecessor of § 6-3-2). This holding conforms with the legislative intent: in 1955, the legislature enacted § 6-3-5 and provided that inconsistent laws would be repealed; yet, § 6-3-7 remained unmodified and continues to be recodified. We conclude that the legislature intended these statutes to operate together, and not either to the exclusion of the other. Ex parte Jones Mfg. Co., 589 So. 2d 208 (Ala.1991) (statutes should be construed together so as to harmonize provisions as far as practical).
In construing these statutes together, this Court observes that fundamental to statutory analysis is the principle that each part of the statute be given effect. Michael v. Beasley, 583 So. 2d 245 (Ala.1991). Amendment No. 473 changes the application of the corporate venue statutes. Each section, however, has some field of operation. See Ex parte Employees' Retirement System of Alabama, 644 So. 2d 943 (Ala.1994) (in applying the clear meaning of a statute, a court must look at the entire statutory scheme rather than at isolated phrases or clauses); Robinson v. State, 361 So. 2d 1113 (Ala.1978) (it cannot be presumed that the legislature used language without any meaning or application).
The language of § 6-3-5, which was first passed in 1955 and which has been amended only technically since, does not reflect a legislative intent to restrict a plaintiff's choice of venue. The fact that § 6-3-5 was intended to be supplemental to § 6-3-7 can be seen by the title: "Relating to civil remedies and procedure: to provide further for venue in actions on policies or certificates of insurance." Ala.Acts 1955, No. 365, p. 886 (emphasis added). This intent is also evident in the language of the statute. Ala.Code 1940 (Recomp.1958), Title 7, § 56(1), provided:
The use of the word "shall" does not require the plaintiff to bring an action only in her county of residence. The grammatical structure of the statute shows that "shall be suable" is the predicate and that its subject is "any person, firm or corporation." The word "shall," therefore, does not reflect an intention *212 to restrict the plaintiff. If this statute were intended to be exclusive, the legislature would have used the language "shall be suable... only in the county where the holder of the policy or certificate resides," or would have stated that actions against insurers "must be commenced ... in the county where the holder of the policy or certificate resides."
In construing § 6-3-5 in pari materia with § 6-3-7, it is important to recognize that, in 1955, § 232 of the Constitution both allowed actions against a foreign corporation in any county where it did business by agent[5] and also prohibited the legislature from limiting or expanding venue of actions against a foreign corporation. Ex parte Western Union Telegraph Co., 200 Ala. 496, 76 So. 438 (1917). Also significant is the fact that in 1955 this Court interpreted the phrases "does business" in § 232 of the Constitution and "does business by agent" in the precursor of § 6-3-7 restrictively,[6] with the effect that a corporation needed an established presence in a county for venue to be proper there. Harrub v. Hy-Trous Corp., 249 Ala. 414, 31 So. 2d 567 (1947) (a foreign corporation establishes presence in the state or a county by the presence of officers or agents therein performing its corporate functions); Bolton v. White Motor Co., 239 Ala. 168, 194 So. 510 (1940) (solicitation of business in Tuscaloosa County by agents of foreign corporation residing in Jefferson County does not constitute "doing business by agent" in Tuscaloosa County for purposes of venue); Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941 (1894) (accord, Harrub, supra). With these points in mind, one can see the enactment of § 6-3-5 as intended to supplement, not to replace, § 6-3-7 as to corporate insurers. Section 6-3-5 affected venue of actions against domestic corporate insurers by allowing proper venue in the county of the policyholder's residence under an expanded concept of whether the insurer was doing business in that county, rather than the restrictive concept of "doing business by agent" applied under the precursor of § 6-3-7.[7] The legislature acknowledged the limitation of § 232 on its power to expand or limit venue of actions against foreign corporations by adding the proviso reading "that an action against a foreign insurance corporation shall be commenced only in a county where it does business." Thus, by allowing an action against an insurer in the county of the policyholder's residence, the legislature was not purporting to allow an action against a foreign corporation other than in a county in which it does business.
Section 6-3-5 merely provides that venue shall be proper in the county of the plaintiff's residence, with the exception that venue of an action against a foreign insurance corporation is proper only where that corporation does business. As previously noted, the proviso regarding foreign insurance corporations indicates the legislature's acknowledgment of *213 § 232 of the Alabama Constitution. At most, this proviso expanded venue of actions against a foreign corporate insurer to the extent that the precursor of § 6-3-7 purported to limit venue of actions against a foreign corporation to those counties in which it did business "by agent"; this is because the proviso of § 6-3-5 does not include the phrase, "by agent." This change in the language might have been purposeful: the language of § 232 does not require the restrictive interpretation given the phrase "by agent" in § 6-3-7. Cf. Ex parte Reliance Ins. Co., 484 So. 2d 414, 418 (Ala.1986) (legislative use of "by agent" adds nothing to meaning of § 232 but rather expresses the implicit principle in § 232 "that a corporation, being but a legal entity, cannot do business except by agent"). Because the legislature was prohibited by § 232 from limiting venue against foreign corporations, the precursor of § 6-3-7 could not have limited such venue by addition of the phrase "by agent" to § 232's use of the phrase "does business." In short, the 1955 legislation did not affect venue of actions against foreign corporate insurers, except perhaps to authorize a somewhat more expansive interpretation of what constituted a corporation's "doing business" in a county.
This construction does not conflict with Amendment No. 473, equating foreign and domestic corporations for purposes of venue, because this amendment did nothing to change the law of venue as to domestic corporations. Amendment No. 473 simply allows venue against foreign corporations "only in those counties where such suit would be allowed if the said foreign corporation were a domestic corporation." The plaintiffs argue that the § 6-3-5 proviso reading "provided, however, that an action against a foreign insurance corporation shall be commenced only in a county where it does business" creates an exception to the language in § 6-3-7 that restricts venue of personal injury actions against corporations. Interpreting that proviso in § 6-3-5 as the plaintiffs do, however, would allow the very thing Amendment No. 473 prohibits: it would allow a personal injury action against a foreign corporate insurer in any county in which that corporation did business, even though an identical personal injury action against a domestic corporate insurer could be brought only in the county where the injury occurred or in the county where the plaintiff resides, if the corporation did business there. Accordingly, this Court holds that § 6-3-5 makes venue proper in the county of the plaintiff's residence, if the defendant insurance company is "doing business" there, as defined by § 6-3-5(b).
Section 6-3-7 has three parts. The first, concerning foreign corporations, provides that "[a] foreign corporation may be sued in any county in which it does business by agent." Amendment No. 473, equating foreign and domestic corporations for purposes of venue, does not render this first part without effect, because of the second part of § 6-3-7: "a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose." Amendment No. 473 affects these first two clauses of § 6-3-7 by allowing actions to be brought in any county in which the foreign corporation was "doing business by agent at the time the cause of action arose" as well as in any county in which the foreign corporation "does business by agent." This construction allows the statute to apply equally to domestic and foreign corporations, as Amendment No. 473 prescribes.
By virtue of Amendment No. 473, the last part of § 6-3-7, providing "that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business in the county of the plaintiff's residence," also applies to actions brought against foreign corporate defendants. Accordingly, Amendment No. 473 affects § 6-3-7 by making the clause on personal injury actions applicable to actions against foreign corporations as well as to actions against domestic corporations. This clause is an exception to the general rule that actions may be brought in any county in which the corporation does business by agent *214 or was doing business by agent at the time the cause of action arose.
The personal injury clause has been termed a "proviso" by this Court. Ex parte Townsend, 589 So. 2d 711 (Ala.1991). The restrictive scope of this proviso has not been fully decided by this Court, nor has it been made clear by the legislature, as it relates to complaints that allege personal injury claims along with claims that are outside the scope of the proviso. It is proper, then, to strictly construe this proviso. Pace v. Armstrong World Industries, Inc., 578 So. 2d 281 (Ala.1991) (if restrictive scope of proviso is in doubt, proviso is strictly construed, and only those subjects expressly restricted are freed from operation of statute); State Farm Mut. Auto. Ins. Co. v. Martin, 292 Ala. 103, 289 So. 2d 606 (1974) (a proviso limits or modifies the enacting clause and should be strictly construed in accord with the general purpose of the enactment). The exception concerning personal injury actions would swallow the rule that venue of actions against corporations lies in any county in which the corporation does business by agent if this Court held that all "personal" actions are covered by the proviso, which uses the term "personal injury." Mobile Liners, Inc. v. McConnell, 220 Ala. 562, 126 So. 626 (1930) (any doubts about exception or proviso in statute must be judged on assumption that rule is broader than exception). The Court has recognized that venue for personal injury actions is limited by § 6-3-7 and thus holds that the proviso precludes application of the general rule in § 6-3-7 where the plaintiff is bringing only a personal injury action.
On the other hand, if the plaintiff is bringing several claims properly joined, and at least one of them is not a personal injury claim, then the proviso does not operate to require the plaintiff to bring the action in either the county where the wrongful act occurred or the county in which the plaintiff resides, if the corporation does business by agent there. At common law, the joinder of contract claims and tort claims was allowed. See Pyle v. Pizitz, 215 Ala. 398, 401, 110 So. 822, 824 (1926), holding it was not grounds for objection to a complaint, as a whole, that it contained some tort claims and some contract claims, since the claims arose out of the same subject matter. Because § 6-3-7 subjects a domestic corporation (and, through Amendment No. 473, a foreign corporation) to a civil action involving a contract claim in any county in which it does business, venue as to those cases involving contract claims is proper in Macon County, at least as to United Insurance Company of America, which does business in Macon County.[8]
Additionally, because venue is proper in Macon County as to United Insurance Company of America and because that corporation is a defendant in each action, the plaintiffs may join in their Macon County actions against that defendant their claims against the other defendants, regardless of where the individual defendants reside. See Louisville & N.R.R. v. Strickland, 219 Ala. 581, 122 So. 693 (1929) (under the common law, a joint, or joint and several, action may be brought in a county having jurisdiction of either defendant, whether that defendant is an individual or a corporation (Code 1923, § 9418)). See also Alabama Power Co. v. Smith, 273 Ala. 509, 142 So. 2d 228 (1962) (in wrongful death action, because venue was proper as to corporate defendant doing business in county where action was brought, venue was proper there also as to individual defendants who resided elsewhere); Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 So. 663 (1906).
Fraud is a "personal injury" for purposes of venue. See Ex parte SouthTrust Bank, 619 So. 2d 1356, 1357 (Ala.1993); Ex parte TranSouth Financial Corp., 608 So. 2d 385, 386 (Ala.1992). The proviso in § 6-3-7 *215 restricts personal injury actions to the county in which the wrongful act occurred or to the county where the plaintiff resides, if the corporation "does business by agent" in that county. Each complaint alleging only personal injury claims must be transferred to the county of the plaintiff's residence, unless the wrongful acts occurred in some other county. Regardless of the counties in which the individual defendants reside, venue in those counties where the plaintiffs live (or in the counties in which the wrongful acts occurred) is proper as to all defendants. See Louisville & N.R.R. v. Strickland, 219 Ala. 581, 122 So. 693 (1929) (under the common law, a joint, or joint and several, action may be brought in a county having jurisdiction of either defendant, whether that defendant is an individual or a corporation (Code 1923, § 9418)).
To summarize, § 6-3-5 makes venue proper in the counties where these plaintiffs reside, regardless of the claims alleged in their complaints, and that section defines "doing business" for purposes of the provisions of that section. Any complaints alleging contract claims were properly filed in Macon County, under § 6-3-7; any complaints alleging personal injury claims only are subject to the clause in § 6-3-7 that limits personal injury actions against domestic corporations (and, through Amendment No. 473, foreign corporations) either to the county of the plaintiff's residence or to the county where the wrongful act occurred. Therefore, the trial judge is directed to vacate his order of December 22, 1994, transferring the petitioners' pending civil actions against United Insurance Company of America and others to the Circuit Court of Shelby County. He must then determine which complaints contain both contract claims and personal injury claims. Those complaints alleging only personal injury actions must be transferred, as the proviso in § 6-3-7 requires.
APPLICATION OVERRULED; OPINION OF JULY 14, 1995, WITHDRAWN; OPINION SUBSTITUTED; WRIT ISSUED.
ALMON, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX and HOUSTON, JJ., dissent.
HOOPER, Chief Justice (dissenting):
I respectfully dissent. I concur in Justice Houston and Justice Maddox's dissents, and I add the following.
None of the plaintiffs resides in Macon County. The alleged injurious acts did not occur in Macon County. None of the defendants resides in Macon County. Ala.Code 1975, § 6-3-5, is mainly for the benefit of the plaintiff, who would normally prefer to bring an action in his or her own home county, unless he or she was forum shopping. There is simply no reason for these plaintiffs to bring these actions in Macon County. Allowing them to pick the forum on the basis of the expected outcome leads one to conclude that they are forum shopping.
As for Macon County's relationship to these cases, it does not matter which statute this Court uses to analyze the situation presented here. Both § 6-3-5 and § 6-3-7, Ala. Code 1975, support the trial judge's order transferring these cases out of Macon County. An honest dispute exists as to what county they should be transferred to.
"The rules of statutory construction require that the words used in a statute be given their plain, natural, ordinary, and commonly understood meaning." Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So. 2d 1219, 1224 (Ala.1984), quoted in Ex parte New England Mut. Life Ins. Co., 663 So. 2d 952 (Ala.1995). If this Court categorizes the complaints as "arising out of" the policies of insurance issued by United Insurance Company, then § 6-3-5 applies. If this Court categorizes the complaints as alleging personal injury, as the trial judge did, then § 6-3-7 applies. Under either statute, venue is not proper in Macon County. If any of the complaints allege both personal injury and contract causes of action "arising out of" the policies of insurance, then venue is still improper in Macon County.
As for actions "on the policy," § 6-3-5 should control if this Court is going to follow the plain, common, and ordinary meaning of the words of a statute. An insurance policy *216 is a contract. Schoepflin v. Tender Loving Care Corp., 631 So. 2d 909 (Ala.1993) (defining an insurance contract in the context of the tort of bad faith refusal to pay); Knight v. Alfa Life Ins. Corp., 594 So. 2d 1229 (Ala. 1992) (action alleging breach of life insurance contract, involving insured's failure to follow policy procedures as to medical examination and tests); Continental Assur. Co. v. Kountz, 461 So. 2d 802 (Ala.1984) (action alleging bad faith refusal to pay and breach of insurance contract). A contract action in the insurance context will necessarily be an action "on the policy"; therefore, § 6-3-5 would apply to determine proper venue with respect to this contract action against United Insurance.
Amendment 473 states that a foreign corporation "may be sued only in those counties where such suit would be allowed if the said foreign corporation were a domestic corporation." The first part of § 6-3-5 states that venue is proper where the holder of the policy resides. That portion of the statute would apply to a domestic insurance corporation, and it does not require that the domestic corporation do business in the county where the action is filed. If foreign corporations are to be treated the same as domestic corporations for the purpose of determining proper venue, then a foreign insurance corporation may be sued in the county of the policyholder's residence without regard to whether it does business in that county or not. Venue in Macon County is, therefore, not proper, because no plaintiff resides in that county.
If this Court relies upon § 6-3-7 as the primary statute for determining venue for these cases, then this Court must decide whether the trial judge abused his discretion in transferring them out of Macon County and to Shelby County. "In cases involving the exercise of discretion by a lower court, a writ of mandamus may issue to compel the exercise of that discretion; however, it may not issue to control the exercise of discretion except in a case of abuse." Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala.1990). "The burden of proving improper venue is on the party raising the issue, and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial court." Ex parte Ralston, 519 So. 2d 488, 490 (Ala.1987).
Amendment 473 provides that foreign corporations will be treated the same as domestic corporations. In light of that constitutional amendment, § 6-3-7 states clearly that a foreign corporation may be sued in a personal injury action in the county where the injury occurred or in the county where the plaintiff resides if the corporation does business by agent in the county of the plaintiff's residence. Macon County fits neither of these criteria. Therefore, the trial judge correctly sought another more appropriate venue. Because venue is proper in more than one county, the trial judge applied Rule 82(d)(3), Ala.R.Civ.P., and, in accord with the unanimous agreement of the defendants, transferred the cases to Shelby County.
Given these facts, this Court should rely upon § 6-3-5 as the primary statute for determining proper venue. Leaving the cases in Macon County in contravention of § 6-3-5 would violate Amendment 473 to the Alabama Constitution of 1901. Under the plaintiffs' interpretation and this Court's interpretation of § 6-3-5, a foreign insurance corporation would be subject to being sued in any county in which it does business, an obviously broad range of venue, since United probably does business in most counties in Alabama. Yet, under § 6-3-5, a domestic insurance corporation would be subject to being sued only in the county of the policyholder's residence, if the defendant insurance corporation did business in that county also. Such a disparity in the treatment given foreign insurance corporations as compared with the treatment given domestic insurance corporations is unconstitutional, given the provisions of Amendment 473.
The majority's interpretation renders § 6-3-5 meaningless. Why would the legislature add a new statute in 1955 and state the counties in which an insurance company shall be sued and not really mean anything by it? Why did the legislature not just say, "A foreign insurance corporation may be sued in any county in which it does business"? Why would the statute even contain language concerning *217 the county where the policyholder resides? Why even have the statute? Section 6-3-7 already existed and, according to the majority's opinion, covers contract actions. This Court should not so easily dismiss a statute because it does not contain the word "only." The majority holding does not clarify this statute; it erases it. The majority opinion relates some informative history on old § 232 of the Alabama Constitution. It is for the most part irrelevant to the discussion of the venue problem in this case. Reliance upon § 232 of the Alabama Constitution of 1901 does not help the Court's interpretation, because Amendment 473 has erased the discriminatory effects of § 232. The plain, natural, ordinary, and commonly understood meaning of the words used in § 6-3-5 suggests that actions against insurance corporations shall be filed in the county where the policyholder resides.
The majority attempts to explain away the use of the word "shall" in § 6-3-5. Nevertheless, it is a significant word. The word "shall" is a mandatory term in § 6-3-5. See Pierson v. State, 677 So. 2d 246 (Ala.1995) ("While conceding that the use of the word `shall' in the statute suggests a mandatory fine, the Court of Criminal Appeals held that the statute `"may also be construed as being permissive where the intent of the legislature would be defeated by making the language mandatory."' 677 So. 2d at 246 (quoting Ex parte Brasher, 555 So. 2d 192, 194 (Ala. 1989))."); State ex rel. Hartman v. Thompson, 627 So. 2d 966, 970 (Ala.Civ.App.1993) ("Moreover, had the legislature intended for service as a holdover to be a mandatory part of the statutory term of office, it would not have used the permissive term `may,' but would have used the imperative term `shall,' as it did elsewhere in § 5-2A-3" and "In the absence of clear legislative intent to the contrary, the word `shall' is to be afforded a mandatory connotation when it appears in a statute," citing Prince v. Hunter, 388 So. 2d 546 (Ala.1980).). Nothing in § 6-3-5 indicates a contrary legislative intent, and the majority today has made no showing whatever that if the language is considered mandatory it will defeat the legislature's intent. On the contrary, making the word "shall" to be permissive, as the majority does, defeats the legislature's intent. To construe the word "shall" in § 6-3-5 as meaning "may" makes that section a permissive statute. The majority causes the permissive statute (§ 6-3-7) to have priority over the mandatory statute (§ 6-3-5). In addition, § 6-3-7 was enacted earlier. It would not follow logically that the legislature enacted a mandatory statute and intended for an earlier permissive statute to override it.
Section 6-3-7 is the general statute covering venue for civil actions against foreign corporations, and § 6-3-5 is the more particular statute covering foreign insurance corporations. I do not consider the statutes to conflict. However, the majority opinion could be interpreted as asserting the existence of a conflict between the two statutes as to contract actions against insurance corporations. In case of such a conflict, the specific statute is to be followed rather than the general statute. Additionally, I note that the portion of § 6-3-7 dealing with personal injury actions against corporations was added to that section in 1903. Section 10471, Ala.Code 1923, amended that portion to apply it only to domestic corporations. Yet § 6-3-5 became law in 1955. I think it is clear that § 6-3-5 was intended to supplement and qualify § 6-3-7.
I would also add that I have found only four opinions written since 1954 that even cite § 6-3-5. None of these opinions carefully analyzed the statute in regard to the question of improper venue. Those cases raised the issue of forum non conveniens and never directly addressed the meaning of the statute. See Ex parte New England Mut. Life Ins. Co., 663 So. 2d 952 (Ala.1995); Ex parte Blount, 665 So. 2d 205 (Ala.1995); Ex parte Bloodsaw, 648 So. 2d 553 (Ala.1994); and Ex parte City of Fayette, 611 So. 2d 1032 (Ala. 1992) (overruled on other grounds, Ex parte Alabama Power Co., 640 So. 2d 921 (Ala. 1994)). That statute apparently has been neglected for years. Nevertheless, the majority opinion's interpretation appears to be unconstitutional when considered in light of Amendment 473.
The majority seems to avoid the plain meaning of § 6-3-5 by citing Amendment *218 473. Amendment 473 states in relevant part that foreign corporations "may be sued only in those counties where such suit would be allowed if the said foreign corporation were a domestic corporation." The language of Amendment 473 serves to restrict venue in an action involving a foreign corporation to those counties where venue would be proper if the action was against a domestic corporation. In other words, a foreign corporation cannot be treated unequally because of the fact that it is a foreign corporation. The amendment does not erase the protection provided a foreign insurance corporation by § 6-3-5. Old § 232 of the Alabama Constitution allowed a plaintiff to sue a foreign corporation in any county where it did business. Amendment 473 amended that section to allow such an action only in a county where venue would be proper in an action against a domestic corporation. Amendment 473 is an anti-forum shopping amendment. The majority has turned it on its head. Interpreting Amendment 473 raises the following question: May a domestic insurance corporation be sued on a policy in a county where the plaintiff does not reside? The plain wording of § 6-3-5 indicates that it cannot. If a domestic insurance corporation may not, then neither may a foreign insurance corporation. The majority has erased the curative effect of Amendment 473. It has also nullified § 6-3-5 by ignoring that section. It does not matter which statute this Court follows in determining proper venue in these casesvenue is not proper in Macon County. Therefore, the joinder of the fraud and contract actions has no effect upon Judge Howard Bryan's order transferring these cases out of Macon County. "It is a general rule that no one has any vested right to any particular remedy or form of procedure, and that the matter of venue belongs to the procedure or remedy, and is no part of the right itself." Home Protection of North Alabama v. Richards & Sons, 74 Ala. 466, 470 (1883). If one considers this change of venue to have been granted on the basis of the doctrine of forum non conveniens, one must conclude that Judge Bryan did not abuse his discretion in transferring these cases out of Macon County. In fact, the majority does not rule out that option. It merely holds that venue is proper in Macon County. It does not address whether the trial judge can transfer these cases to another county based on the doctrine of forum non conveniens.
Forum shopping is a horrendous abuse of the judicial system. The trial judge did not clearly err in transferring these cases out of Macon County. In fact, he did his duty. I would deny the mandamus petition as it relates to Judge Bryan's holding that venue is improper in Macon County. The clear wording of Ala.Code 1975, § 6-3-5, states that proper venue for an action "on the policy" is the county in which the policyholder resides. Section 6-3-7 provides that venue is proper in (1) the county where the injury occurred, or (2) the county where the plaintiff resides. Macon County does not qualify under either § 6-3-5 or § 6-3-7.
MADDOX, Justice (dissenting).
On application for rehearing, the majority has withdrawn its original opinion and has substituted another; unfortunately, the majority has reached the same result it reached in that first opinion on July 14, 1995that Macon County is a proper venue for these cases although not one of the 16 plaintiffs and not one of the individual defendants resides there.
In reaching that result, the majority holds that the laws of Alabama authorize these plaintiffs to file these claims against a corporate defendant in Macon County and force not only that corporate defendant but the individual defendants, who admittedly committed no wrongful acts in Macon County, to be tried by a jury in Macon County.[9] The *219 trial judge, recognizing how unfair this was, transferred the cases to Shelby County. In doing that, of course, he erred, because Shelby County is not the most convenient forum for the trial of all these cases either. Consequently, I cannot agree with the majority's interpretation of Ala.Code 1975, § 6-3-5, but instead concur with Justice Houston's views expressed in his dissenting opinionthat the settled rules of statutory construction require that the provisions of § 6-3-5 be construed to require a transfer.[10] I also agree with Justice Houston that the trial judge erred, however, in transferring all of the cases to Shelby County, but I desire to state some additional views on the subject of venue of actions such as these, especially as it relates to legislative intent in allowing trial judges, and sometimes requiring them, in the interest of justice, to transfer a case to a more convenient forum.[11]
In Alabama, the venue of actions is governed by provisions of the state Constitution, which vests in the legislative branch the sole power to govern venue in both criminal and civil cases. This Court, except when using its power to interpret the intent of a law passed by the legislature or when interpreting a provision of the Constitution, has no authority to determine the place where a civil action can be filed. In fact, when the people ratified Amendment 328 to their Constitution, they specifically stated that this Court, even though granted the power to adopt rules governing practice and procedure, could not "abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein." Amend. 328, § 6.11, Const. of Ala.1901.
As I interpret Alabama law, these defendants have a substantive right not to be sued in a county unless the legislature has authorized it or required it, and they have a right to have an action transferred to a more convenient forum in the interest of justice. It is clear to me that during the past decade the legislature has been limiting the right of parties to pick the forums where their actions can be brought, and the majority, by interpreting legislative intent so as to authorize a plaintiff to choose a forum where he or she does not reside, where the individual defendants do not reside, and where the event giving rise to the cause of action did not occur, applies a statutory interpretation that seems to run contrary to what the legislature intended.
Assuming, however, that the law did permit the individual defendants to be sued in Macon County, where neither they nor the plaintiffs reside, does the law give them any rights? Of course, it does. Assuming further that the corporate defendant could properly be sued in Macon County, does the law give the corporate defendant any rights? Of course it does. The law provides that, in the interest of justice, the trial judge, using the provisions of law, has the authority to transfer a case to a more convenient forum.[12]
*220 It seems quite apparent to me that the legislature, in adopting the forum non conveniens statute, intended to change the law relating to a plaintiff's right to choose the forum and provided that, even if a civil action has been filed in an appropriate venue, "any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed." (Emphasis added.) In fact, this Court, last term, using this principle of law, required a trial judge to transfer a case out of a particular county, even though the plaintiff had moved to the county and resided there at the time he filed his action. Ex parte New England Mutual Life Ins. Co., 663 So. 2d 952 (Ala.1995).[13] The majority cites New England Mutual for the proposition that the venue statutes must be read in pari materia, but it seems to ignore the fact that in that case this Court ordered a transfer.
New England Mutual addressed the intent of the legislature in adopting the forum non conveniens statute:
663 So. 2d at 956.
In that case, the Court held that the legislature had intended to grant a trial judge *221 broad discretionary power to transfer a case when "the defendant's inconvenience and expense of defending the action in the venue selected by the plaintiff are such that the plaintiff's right to choose the forum is overcome." 663 So. 2d at 956.
Given our holding in New England Mutual then, even assuming that the majority has correctly interpreted the statutes as authorizing the filing of these actions in Macon County, that does not mean that the trial judge was powerless to transfer them, because the legislature, in § 6-3-21.1, in granting trial judges the power to transfer cases, has used the words "in the interest of justice." (Emphasis added.) The legislature must have intended for those words to have meaning, or else it would not have placed them in the statute. What do they mean?
In my opinion, the legislature, in adopting the forum non conveniens statute that includes these words, intended to vest in the trial courts, and in this Court and the Court of Civil Appeals, the power to transfer a case when the "interest of justice" requires a transfer. In 1987, the legislature, after extensive debate, adopted the statute that the trial judge followed in transferring these cases. In my opinion, when the trial judge determines that a plaintiff is guilty of "forum shopping" and that the chosen forum is inappropriate because of considerations affecting the court's own administrative and legal problems, the statute provides that the trial court "shall" transfer the cause. What has the Supreme Court of the United States said about "forum shopping," which is obviously involved in these cases? That Court has stated that because plaintiffs are allowed a choice of forum by statute, a plaintiff may be "under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 842, 91 L. Ed. 1055 (1947). In another case, the United States Supreme Court, applying the forum non conveniens doctrine, said a transfer under that doctrine is proper when:
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S. Ct. 252, 258, 70 L. Ed. 2d 419 (1981), quoting Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S. Ct. 828, 831-32, 91 L. Ed. 1067 (1947).
I realize that a defendant moving for a transfer under the doctrine of forum non conveniens has the initial burden of showing that the selected forum is inconvenient. The United States Supreme Court, in the Gulf Oil case, addressed this issue and discussed the competing private and public interests involved:
330 U.S. at 508-09, 67 S. Ct. at 843. For a discussion of the issue presented here, see, "Review and Appeal of Forum Non Conveniens and Venue Transfer Orders," 59 Geo. Wash.L.Rev. 715 (1991).
I am of the opinion that the legislature, by adopting the forum non conveniens statute, which allows the transfer of an action that has been filed in a proper forum, intended to promote the concept of fairness and justice and to provide trial judges with the power to transfer a case, if the trial judge, in the exercise of broad discretion, determines that, in the words of the legislation, "the interest of justice" requires it. Blair v. Container Corp. of America, 631 So. 2d 919, 921 (Ala. 1994); Ex parte Canady, 563 So. 2d 1024, 1025 (Ala.1990).
The trial judge stated his reasons for transferring these cases. The evidence shows that none of the parties or witnesses resides in Macon County; that the only contact with Macon County is the fact that a defendant corporation does business by agent in Macon County; and that the filing of this case in Macon County was an intentional act of forum shopping.
I close this dissent by asking this question: How can permitting 23 plaintiffs to sue individual and corporate defendants in a county where none of the individual plaintiffs and none of the individual defendants resides, and where none of the alleged wrongful acts occurred, be "in the interest of justice"? It would seem to me that the most convenient forums would be the counties where the individual plaintiffs reside and where the corporate defendants apparently did the business that led to these disputes, and where the alleged wrongful acts occurred. The public interest in the fair application of venue statutes is apparent, and I believe the trial judge here carried out the intent of the legislature. Consequently, I must respectfully dissent.
HOOPER, C.J., and HOUSTON, J., concur.
HOUSTON, Justice (dissenting).
While I join Justice Maddox's dissent, I also choose to write specially.
Alabama Code 1975, § 6-3-5, applies to all corporations that issue policies or certificates of insurance of any kind. The defendants in these actions are corporations that issue policies or certificates of insurance. Under § 6-3-5, these defendants are "subject to a civil action on any such policy or certificate in the county where the holder of the policy or certificate resides." Therefore, the proper venue for these contract actions must be determined by looking to § 6-3-5. The contract actions must be brought in the county where the holder of the policy resides. Insofar as the tort actions are concerned, Ala. Code 1975, § 6-3-7, applies; it provides that "all actions against a ... corporation for personal injuries must be commenced in the county where the injury occurred or the county where the plaintiff resides." [14] None of the injuries occurred in Macon County and none of the plaintiffs reside in Macon County; therefore, the trial court correctly ruled that Macon County was not a proper venue for these actions. However, the trial court erred in transferring these actions to Shelby County, where, likewise, none of the plaintiffs resides and none of the injuries occurred. I would issue the writ and vacate the trial court's order transferring these actions to Shelby County, and I would instruct the trial court to transfer these actions to the counties in which the plaintiffs reside. The petition states that the following plaintiffs reside in Elmore County: Mary L. Gauntt; Rosa O. Brown; Ola Mae Henderson; Dorothy J. Mays; Katherine Adams; Loretta *223 Gilder; Catherine Talley; Nellie Rogers; Artis Rogers; Shirley Williams; Don Guary; and Bonnie Guary. The petition states that the following plaintiffs reside in Montgomery County: Alberta Harmon; Betsy Dorsey; Fannie Dorsey; Louise Bell Artis; Pauline Ellis; Vickie D. Johnson; Patricia Ann Knight; and Eleanor B. Wilson. The petition also indicates that the plaintiffs Anita Simon Walker and Nell Simon Dennis reside in Chilton County and that the plaintiff Pearl Gauntt resides in Tallapoosa County.
HOOPER, C.J., and MADDOX, J., concur.
SHORES, Justice.
APPLICATION OVERRULED.
ALMON, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting) (dissenting opinion modified on denial of second application for rehearing, May 3, 1996).
The majority opinion has implicitly overruled the discussion of Ala.Code 1975, § 6-3-5, in Ex parte New England Mutual Life Insurance Co., 663 So. 2d 952 (Ala.1995). I concurred in New England Mutual. I still concur with the result reached in New England Mutual; however, I would modify New England Mutual as it relates to the discussion of § 6-3-5, for the following reason.
The phrase "a civil action on any such policy or certificate" implies an action based on rights or obligations of the parties arising out of the terms of the policy or certificate and not rights or duties implied in law.
Alabama Code 1975, § 6-3-5, applies to all corporations that issue policies or certificates of insurance of any kind. The defendants in these actions are corporations that issue policies or certificates of insurance. Under § 6-3-5, these defendants are "subject to a civil action on any such policy or certificate in the county where the holder of the policy or certificate resides." Therefore, the proper venue for these contract actions must be determined by looking to § 6-3-5. The contract actions must be brought in the county where the holder of the policy resides. Insofar as the tort actions are concerned, Ala. Code 1975, § 6-3-7, applies; it provides that "all actions against a ... corporation for personal injuries must be commenced in the county where the injury occurred or the county where the plaintiff resides." [1] None of the injuries occurred in Macon County and none of the plaintiffs reside in Macon County; therefore, the trial court correctly ruled that Macon County was not a proper venue for these actions.
Adding to the tortured history of this case is the fact that in all of the confusion over venue as to the corporate defendants, I, in my original dissent, overlooked the fact that there was an individual defendant who resided in Shelby County. Venue was proper as to him in Shelby County. Ala.Code 1975, § 6-3-2(a)(2), (3). Therefore, under Rule 82(c), A.R.Civ.P., venue was proper in Shelby County and the trial court did not err in transferring this action to Shelby County.
HOOPER, C.J., and MADDOX, J., concur.
[1] Section 6-3-7 provides:
"A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff's residence."
[2] Amendment No. 473 changed § 232 so that venue of actions against a foreign corporate defendant is proper where venue would be proper for an action against a domestic corporation.
[3] We do not rely on Rule 82 for our decision in this case, and although Roland Pugh Min. Co. v. Smith, 388 So. 2d 977, 979 (Ala.1980), deals with venue as to multiple defendants, this Court properly noted in that case that "Rule 82(c), A.R.C.P., simply restates the statutes as heretofore construed by this Court."
[4] In the current statute, § 6-3-5, subsection (a) provides:
"Any person, firm or corporation that issues policies or certificates of insurance of any kind shall be subject to a civil action on any such policy or certificate in the county where the holder of the policy ... resides ...; provided, however, that an action against a foreign insurance corporation shall be commenced only in a county where it does business."
[5] Before the adoption of the Constitution of 1901, this Court had construed the precursor of § 232, holding that Code 1886, § 2642, "in so far as it relates to foreign corporations, is merely affirmatory of the constitution." Sullivan v. Sullivan Timber Co., 103 Ala. 371, 373, 15 So. 941, 941 (1894). Then, as now, the constitution did not include the phrase "by agent," but the statute did. The Court deemed this difference immaterial: "When a foreign corporation `does business' within the State, of necessity the business is done by and through agents; and the necessity is recognized by the constitution and by the statute." Id., 103 Ala. at 379, 15 So. at 944. The framers of a constitution are presumed to have known of a pre-existing decision of this Court construing a constitutional provision. Board of Revenue of Jefferson County v. State ex rel. City of Birmingham, 172 Ala. 138, 149, 54 So. 757, 760 (1910). Thus, after the adoption of the 1901 Constitution, the Court continued to require, both as to foreign corporations and as to domestic corporations, that the corporation be doing business "by agent" in a particular county for venue to be proper in that county.
[6] The phrase "doing business by agent" has been interpreted less restrictively in recent cases. Tidwell v. Louisiana-Pacific Corp., 517 So. 2d 602, 603 (Ala.1987) (unnecessary for a corporation to have an agent physically present and conducting business in a county for venue to be proper there); accord, Ex parte Reliance Ins. Co., 484 So. 2d 414, 417 (Ala.1986). This less restrictive application derives from the expansion of the concept of personal jurisdiction over corporations that began with International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945).
[7] Section 232 does not apply to domestic corporations. Harris v. Elliott, 277 Ala. 421, 171 So. 2d 237 (1965).
[8] United Insurance Company of America is a subsidiary of the defendant Unitrin, Inc. The other corporate defendants, United Casualty Insurance Company, Union National Life Insurance Company, and Union National Fire Insurance Company, are wholly owned subsidiaries of United Insurance Company of America. The defendant George McDonald is United Insurance Company's regional manager in Alabama; one group of individual defendants are current or former employees of one or more of the defendant corporations; the remaining individual defendants are officers or directors of one or more of the defendant corporations.
[9] The salient facts are:
(1) None of the plaintiffs resides in Macon County now, and none of them resided there either at the time they filed these complaints or at the time any of the alleged wrongful acts occurred.
(2) None of the individual defendants in any of the cases resides in Macon County now, and none of them resided there either at the time the complaints were filed or at the time any of the alleged wrongful acts occurred.
(3) The underlying actions are personal actions, although each apparently arises out a relationship between an insured and an insurer and the alleged agents of the insurer.
(4) The plaintiffs' only basis for filing the actions in Macon County is that some of the corporate defendants do business in that county.
(5) None of the alleged wrongful acts or omissions committed against any plaintiff occurred in Macon County and none of the plaintiffs suffered any injury in Macon County.
[10] The relevant portion of Ala.Code 1975, § 6-3-5, provides:
"(a) Any person, firm or corporation that issues policies or certificates of insurance of any kind shall be subject to a civil action on any such policy or certificate in the county where the holder of the policy or certificate resides, and the summons may be executed by serving a copy of the summons and complaint upon any officer or agent of the insurer; provided, however, that an action against a foreign insurance corporation shall be commenced only in a county where it does business."
(Emphasis added.)
[11] See, Ex parte New England Mutual Life Ins. Co., 663 So. 2d 952 (Ala.1995).
[12] Ala.Code 1975, § 6-3-21.1(a), reads as follows:
"(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein."
(Emphasis added.)
This Code section is taken from Act No. 87-181, Ala. Acts 1987, p. 243, which was part of the so-called "tort reform" package of bills adopted by the legislature; when it adopted that package of bills, the issues of venue and the principle of forum non conveniens were important issues being considered by the legislature. Robert D. Hunter, who served as the Governor's special counsel on tort reform at the time those bills were adopted, specifically stated the following regarding the doctrine of forum non conveniens:
"The ability to transfer cases within Alabama for the convenience of parties and witnesses and in the interest of justice was denied Alabama courts prior to passage of Alabama Code section 6-3-21.1 in this tort reform effort. Courts are now required to transfer a case to a county in which the case originally might have been filed if the convenience of the parties and witnesses or the interests of justice so dictate. Although the statute uses the mandatory term `shall,' judicial discretion will necessarily be involved in considering the factors of convenience and the interest of justice.
"As introduced, the forum non conveniens proposal referred only to a `change' of venue. Although the Alabama Constitution grants courts the power to `change' venue, existing statutes speak in terms of both a `change' and a `transfer' of venue. One `change' of venue for cause is permitted any party, while a defendant may move for `transfer' of venue as provided in the Alabama Rules of Civil Procedure. Those who drafted section 6-3-21.1 were of the view that venue was `changed' and actions were `transferred,' a view apparently shared by those who drafted Alabama Rule of Civil Procedure 82. During the course of Senate debate, the reference was expanded to include `change or transfer' of venue. The language was altered to insure that section 1(b), which specified the new right, was considered cumulative to previously existing rights."
"Alabama's 1987 Tort Reform Legislation," 18 Cumb.L.Rev. 289 (1988).
[13] In that case, the corporate defendant was sued in Barbour County by a plaintiff who lived in Barbour County at the time the action was filed. The corporate defendant asked the trial judge to transfer the case to Montgomery County, but the trial judge refused. This Court, on petition of the corporate defendant and the individual defendant, issued a writ of mandamus requiring the transfer, based on the conclusion that the petitioners had clearly shown that Barbour County was not the most convenient forum. In fact, as stated above, in that case this Court ordered the trial judge to transfer the case out of the county where it was filed, even though the plaintiff resided there.
[14] Although § 6-3-7 reads "domestic corporation," Amendment No. 473 to the Constitution of Alabama of 1901, which was proclaimed ratified on April 1, 1988 (Proclamation Register No. 6, p. 39), provides, in pertinent part: "Any foreign corporation ... may be sued only in those counties where such suit would be allowed if said foreign corporation were a domestic corporation." Therefore, the quoted provision of § 6-3-7 applies to all corporations.
[1] Although § 6-3-7 reads "domestic corporation," Amendment No. 473 to the Constitution of Alabama of 1901, which was proclaimed ratified on April 1, 1988 (Proclamation Register No. 6, p. 39), provides, in pertinent part: "Any foreign corporation ... may be sued only in those counties where such suit would be allowed if said foreign corporation were a domestic corporation." Therefore, the quoted provision of § 6-3-7 applies to all corporations. | May 3, 1996 |
76a42fce-fc24-4267-9222-27210d18ab88 | Ex Parte Hutcherson | 677 So. 2d 1205 | 1931660 | Alabama | Alabama Supreme Court | 677 So. 2d 1205 (1996)
Ex parte Larry Eugene HUTCHERSON.
(Re Larry Eugene Hutcherson v. State).
1931660.
Supreme Court of Alabama.
February 23, 1996.
*1206 Glenn Davidson, Mobile, for Petitioner.
James H. Evans and Jeff Sessions, Attys. Gen., and Gilda Branch Williams, Deputy Atty. Gen., for Respondent.
KENNEDY, Justice.
The opinion of December 8, 1995, is withdrawn, and the following opinion is substituted therefor.
Larry Eugene Hutcherson was convicted of murder made capital because it was committed during the course of robbery and sodomy. See § 13A-5-40(a)(3) and -(a)(4), Ala.Code 1975. The jury voted 11 to 1 to recommend the death penalty. The trial court accepted the jury's recommendation and sentenced Hutcherson to death. The Court of Criminal Appeals affirmed the conviction and the sentence. Hutcherson v. State, 677 So. 2d 1174 (Ala.Crim.App.1994). This Court has granted certiorari review.
The state's evidence tended to show the following: On June 27, 1992, the body of 89-year-old Irma Thelma Gray was discovered in her home on Moffat Road in Mobile County. Her throat had been cut so severely that she had almost been decapitated. The medical examiner also found other injuries, including cuts, bruises, and multiple fractures to the ribs. The medical examiner also found evidence of sodomy.
There were signs of a forced entry into the house, and the house was in total disarray. Several items were missing, including a window unit air conditioner, a microwave oven, a television, and a radio. Hutcherson's driver's license was found in front of the closets in one of the bedrooms. A bloody knife was also found near the license.
A fingerprint on Ms. Gray's washing machine matched the print of Hutcherson's right thumb. A rag found in the garage was covered in blood that was consistent with Hutcherson's blood type. Also, blood found on the windowsill was consistent with Hutcherson's blood type. Blood found on Hutcherson's blue jeans was consistent with Gray's blood type.
Hutcherson was picked up by Mobile police on an arrest warrant from the City of Prichard, based on a traffic offense. After being taken to the police station and being read his Miranda rights, Hutcherson asked to speak to a detective; while speaking with the detective, he confessed to the murder.
Three witnesses testified that Hutcherson had sold them a television, a radio, and a microwave oven, respectively, all of which had belonged to Gray. Hardy Avera, a friend of Hutcherson's, testified that on the night of June 25, 1992, Hutcherson said he thought he had killed someone. On June 26, 1992, Hutcherson and Avera went to Gray's house; Hutcherson went inside and came back with an air conditioner. There was testimony that Hutcherson's stepfather, Jackie Lang, also went to Gray's house with Hutcherson to get some items, which he kept.
Hutcherson raised 32 issues in his brief in this Court. However, we need only address the issue regarding the admission of DNA (deoxyribonucleic acid) evidence; our resolution of that issue requires a reversal.
Basically, DNA is found in the nucleus of most cells of the body and is unique to the individual, except in the case of identical twins. It is composed of a long double helix, which resembles a spiral staircase. The backbone of the DNA molecule consists of repeated sequences of phosphate and deoxyribose sugar. Attached to the sugar links in *1207 the backbone are four types of organic bases: adenine, guanine, cytosine, and thymine. The steps of the staircase are formed by pairs of these bases. A single DNA molecule consists of approximately three billion base pairs. The sequence of these pairs is what distinguishes one person's DNA from another.
In Ex parte Perry, 586 So. 2d 242 (Ala.1991), this Court set out the following three-pronged test, which must be met in order to admit DNA evidence: (1) "Is there a theory, generally accepted in the scientific community, that supports the conclusion that DNA forensic testing can produce reliable results?" (2) "Are there current techniques that are capable of producing reliable results in DNA identification and that are generally accepted in the scientific community?" and (3) "In this particular case, did the testing laboratory perform generally accepted scientific techniques without error in the performance or interpretation of the tests?" 586 So. 2d at 250.
Before the court can admit challenged DNA evidence, it must hold a hearing, outside the presence of the jury, to determine if the Perry test has been met. 586 So. 2d at 254-55.
Hutcherson argues that the State failed to comply with Perry, in that the trial court did not conduct a hearing outside the presence of the jury, and furthermore, he argues, the testimony failed to satisfy the complete Perry test.
The State contends that although the Perry test was not satisfied, because there was no hearing outside the presence of the jury, the admission of DNA evidence was harmless error because, it says, there was no doubt that the victim had been sodomized and murdered by Hutcherson. The State argues that in this case the factfinder could have drawn no inference from the presence of the semen in the victim's rectum except that Hutcherson had committed the sodomy and could have drawn no inference from the blood samples taken at the crime scene, which matched the blood types of Hutcherson and the victim, except that he had committed the murder. The State argues that other states have applied the harmless error doctrine to the admission of DNA evidence when there is other overwhelming evidence of guilt.
In affirming, the Court of Criminal Appeals held that because of the other evidence of guilt, the admission of the DNA evidence, though erroneous because the State had failed to comply with Perry, was harmless.
At the outset, we note that this Court's reasoning in Perry for establishing standards to be met before the court admits DNA evidence is that DNA evidence is relatively new and the resulting prejudice to the defendant is sufficiently great. Therefore, a foundation must be laid as to the overall admissibility of the evidence.
Generally, there are two types of DNA evidence that may be admissible. One is DNA "matching" evidence, where one sample of DNA matches another sample. The other is DNA population frequency statistics, where the testimony concerns the frequency with which a given DNA pattern might occur statistically or might occur in a given population. There are scientific reasons for distinguishing between the two. The evidence necessary to show a "match" does not alone indicate the frequency with which that DNA pattern might occur. Population frequency statistics, on the other hand, require data on the relevant populations involved as well as data for mathematical, statistical analysis.
There are also legal reasons for distinguishing between DNA "matching" evidence and DNA population frequency statistics. DNA "matching" evidence might indicate that everyone's DNA is unique, but the impact of that testimony might not be as strong as saying that one person in hundreds of millions of people might have DNA similar to the DNA found at the crime scene. One could argue that the prejudicial impact of the statistics might unduly impact on the jury. However, a blanket statement that the DNA found at the crime scene "matched" the defendant's DNA might be just as prejudicial as statistical evidence if the term "match" is not defined. It could be that the jury would interpret such a statement to mean the DNA was an exact "match" with that of the defendant's and not a statistical probability, regardless of how high the statistic.
*1208 The testimony concerning DNA evidence in this case was as follows: The State presented the testimony of Sarah Elaine Scott. Scott is a forensic scientist. (R.T. 319.) She testified that she identifies and characterizes bodily fluids. (R.T. 319-22.) Scott has a master's degree and has had special training in serological research by the FBI, the American Academy of Forensic Scientists, and several private corporations that do serological work. (R.T. 319-22.) She testified that she collected fluid stains from the victim and her home. (R.T. 322.)
Scott stated that she tested blood taken from the victim at the autopsy, along with blood stains found at the crime scene. (R.T. 322-25.) She testified that the blood and bloodstains were first tested by a conventional method called a "PGM test," which identifies the amount of red cell enzymes in the blood. (R.T. 327.) She stated that the victim was a "2AIA" type and that Hutcherson was a "1A" type. (R.T. 327.)
Scott stated that "1A" type blood was found on a rag inside a car. (R.T. 330-31.) She said that blood found on the victim's porch was type "1A" and that blood found on Hutcherson's jeans was type "2AIA." (R.T. 330-31.)
Scott testified that blood on a knife found in Hutcherson's possession was not sufficient to type with the conventual PGM test, so that a DNA test had to be done. (R.T. 331.) Also, she said, swabs taken from the victim's rectum had to be tested for DNA. Scott testified that DNA matching and testing were generally accepted in the scientific community. (R.T. 332.) Next, Scott explained that DNA is a person's genetic makeup and that it is unique to each individual. (R.T. 332.) Scott further testified that the techniques used in her lab were generally accepted in the scientific community. (R. 333.)
Hutcherson's counsel asked for voir dire examination of Scott on the DNA issue. (R.T. 335.) Counsel asked Scott how DNA is matched up. (R.T. 335-36.) Scott stated that it is a six-week process in which DNA is separated from the stain and "cut." (R.T. 336-40.) The DNA chain that results is then examined under a microscope. (R.T. 341.) Viewed under the microscope, "ladder lanes" with standard DNA genetic markers are compared with the DNA fluid stains from the crime scene. (R.T. 341-42.) She stated that the ladder lanes are developed in a laboratory by Lifecodes, a private corporation in the business of DNA testing. (R.T. 341-43.) The laboratory-created ladder lanes are compared with the DNA strands extracted from the stains. (R.T. 342-44.)
Hutcherson's counsel objected to Scott's testimony concerning DNA because there had been no testimony about Lifecodes' acceptance in the general community for being reliable and no testimony about Lifecodes' technique and the sample ladder lanes that are used to match the DNA. (R.T. 344.) The trial court overruled the objection. Subsequently, Scott testified that the DNA tests were consistent with the blood type tests that had been done. (R.T. 346.)
Immediately after Scott testified, Roger Morrison, a forensic scientist with the Alabama Department of Forensic Sciences, testified. (R.T. 347.) Morrison stated that he performed "DQ Alpha" tests on the various samples sent to him for analysis by Elaine Scott. (R.T. 350.) He testified that a DQ Alpha test examines and identifies a gene in the human leukocyte antigen system. (R.T. 350.)
Morrison testified that the victim was DQ Alpha type 1.2, 2 and that Hutcherson was a 1.1, 1.2. He stated that the sample taken from the spermatozoa found in the victim's rectum was DQ Alpha type 1.1, 1.2consistent with Hutcherson's type.
Morrison then described the DQ Alpha testing process. He stated that the DNA is extracted from a stain. (R.T. 354-55.) Then, the DQ Alpha gene is identified from the DNA strand. (R.T. 354-55.) Morrison testified that DQ Alpha testing is generally accepted by the scientific community and that the techniques used by his lab were generally accepted in the scientific community. (R.T. 356.) Morrison then went on to explain the technique he used and one type of quality control used by his lab to prevent error. (R.T. 356-58.)
After reviewing the DNA testimony given in this case, we agree with the Court of *1209 Criminal Appeals that the trial court erred in failing to conduct a hearing outside the presence of the jury on the admissibility of the DNA evidence. We also agree that the State failed to comply with Perry, because there was insufficient testimony concerning the reliability of the test results. Specifically, the testimony from forensic scientist Elaine Scott failed to satisfy the third prong of the Perry test because she did not testify as to the quality controls used by the Mobile laboratory. Additionally, testimony from Roger Morrison failed to sufficiently meet the third prong, because he explained only one type of quality control procedure used and did not testify as to other quality control procedures used except to state generally that quality controls were used. However, we disagree with the Court of Criminal Appeals' application of the harmless error doctrine to the admission of DNA evidence.
"Harmless error" is defined as "an error which is trivial or formal or merely academic and was not prejudicial to the substantial rights of the party assigning it and in no way affected the final outcome of the case." Black's Law Dictionary 718 (6th ed. 1990). In order to secure a reversal of a judgment, an appellant not only must show error, but also must demonstrate that the error resulted in a substantial injury. Rule 45, A.R.App.P. Overwhelming evidence of guilt does not render prejudicial error harmless under Rule 45. Ex parte Lowe, 514 So. 2d 1049 (Ala.1987).
In a case somewhat similar to this one, Malone v. City of Silverhill, 575 So. 2d 101 (Ala.Cr.App.1989), involving a prosecution for driving under the influence of alcohol, the Court of Criminal Appeals held that the erroneous admission of the results of an "HGN" test without a proper predicate was harmless error because there was other overwhelming evidence of guilt. We reversed, holding that the erroneous admission of the results of an "HGN" test without a proper predicate required reversal, regardless of the other evidence of guilt. Ex parte Malone, 575 So. 2d 106 (Ala.1990). Specifically, we stated that the problem with the improper admission of the evidence was attributable to the scientific nature of the test and the disproportionate impact it might have had on the jury's decision-making process." 575 So. 2d at 107.
"`Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.'" Ex parte Greathouse, 624 So. 2d 208 (Ala.1993), quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1982).
We hold that the admission of the DNA evidence was not harmless beyond reasonable doubt. The prejudicial impact of both DNA "matching" evidence and DNA population frequency statistics creates such a possibility for prejudicial impact upon the jury that the admission of DNA evidence without complying with Perry can never be harmless error. Perry sets out the predicate for properly admitting DNA evidence, and it must be followed in order to ensure the reliability and trustworthiness of the evidence. The prejudicial impact of scientific testimony, such as that relating to DNA, can unduly influence a jury; it must have a proper foundation before it is presented. A specific example of how DNA evidence probably influenced the jury in this case is Roger Morrison's testimony. The only evidence linking Hutcherson to the sodomy charge was Morrison's testimony that semen found in the victim's rectum "matched" Hutcherson's. However, at least two other males had visited the crime scene, and their bodily fluids were never tested. This alone could create a reasonable doubt as to Hutcherson's guilt on the sodomy charge. Certainly, the DNA evidence from Morrison regarding the semen contributed to Hutcherson's conviction.
Based on the State's failure to comply with the standard we set out in Perry regarding DNA evidence, we must reverse the judgment of the Court of Criminal Appeals and remand the cause for further proceedings consistent with this opinion.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.
*1210 HOOPER, C.J.,[*] and ALMON,[*] SHORES, and COOK, JJ., concur.
MADDOX and BUTTS, JJ., dissent.
BUTTS, Justice (dissenting).
I respectfully dissent. The majority states that "[t]he prejudicial impact of both DNA `matching' evidence and DNA population frequency statistics creates such a possibility for prejudicial impact upon the jury that the admission of DNA evidence without complying with [Ex parte Perry, 586 So. 2d 242 (Ala.1991),] can never be harmless error." 677 So. 2d at 1209 (emphasis added). I do not agree that DNA evidence is, in every case, so patently prejudicial that its admission will be automatic reversible error if the State fails to strictly comply with Perry in every respect. Rather, I believe that the Court of Criminal Appeals correctly adopted the reasoning of the Arizona Supreme Court as set out in State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1578, 128 L. Ed. 2d 221 (1994), in determining that any error in establishing the admissibility of DNA evidence may be found to be harmless beyond a reasonable doubt where the other evidence of guilt is patently overwhelming.
I have thoroughly studied the record and find overwhelming evidence indicating that Larry Eugene Hutcherson committed the crimes for which he was charged. I would therefore hold that any error in admitting DNA evidence in this case was harmless, and I would uphold the Court of Criminal Appeals' affirmance of Hutcherson's conviction and sentence.
MADDOX, J., concurs.
[*] Although Chief Justice Hooper was not a member of this Court when this case was orally argued, he has listened to the tape of the oral argument. Justice Almon did not sit for oral argument, but he has listened to the tape of the oral argument. | February 23, 1996 |
c9d6f080-1d7e-4394-983d-522d529d345d | City of Bessemer v. Foreman | 678 So. 2d 759 | 1941887 | Alabama | Alabama Supreme Court | 678 So. 2d 759 (1996)
CITY OF BESSEMER
v.
C.V. FOREMAN, Sr., et al.
1941887.
Supreme Court of Alabama.
April 26, 1996.
*760 Jeffery V. Hood, Bessemer, for Appellant.
Alex W. Newton and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, Clifford W. Hardy, Bessemer, for Appellees.
BUTTS, Justice.
The City of Bessemer appeals from an order granting the plaintiff a new trial in a breach of contract action.
C.V. Foreman, Sr., individually and doing business as Foreman Sanitation Services, sued the City of Bessemer, seeking damages for the alleged breach of several contracts he claimed to have with the City for municipal garbage pickup. Foreman alleged that he had executed two written contracts with the City to provide garbage pickup in certain areas; that only the first of the two written contracts was valid; and that the City breached this contract by underpaying the agreed-upon fee. In the alternative to a recovery on the written contracts, Foreman sought a quantum meruit recovery for the value of his garbage pickup services. Foreman also alleged that he had an oral contract with the City that was in effect from October 1986 until the City changed its form of government in January 1993, and that under that oral contract the City was to set aside $1200 monthly in a pension fund for him, in return for his garbage pickup services in the downtown area. He alleged a breach of that contract.
The City counterclaimed, arguing that the first written contract was invalid and that under the second written contract, which it claimed was valid, it had actually overpaid Foreman and was entitled to a repayment of $22,335. The City further alleged that the terms for Foreman's pickup of downtown garbage were included within this second contract, and that it had had no oral contract to retain a pension fund in return for this service.
The jury returned a verdict for the City on Foreman's claim alleging breach of an oral contract. It awarded Foreman $145,860 on the theory of quantum meruit, apparently finding that neither written contract was valid. However, the jury also returned a verdict for the City on its counterclaim alleging overpayment under the second written contract, awarding the City $22,335; thus, in regard to the counterclaim the jury implicitly found that the second contract was valid. Foreman moved for a new trial, alleging an inconsistency of the verdicts; the trial court granted the motion.
Where a jury verdict is the result of confusion or is inconsistent in law, the trial court should grant a new trial; a new trial is necessary because, once the jury is dismissed, any attempt to reconcile the inconsistencies in a verdict must be based on mere speculation about the jury's intent. A.L. Williams & Associates, Inc. v. Williams, 517 So. 2d 596 (Ala.1987).
The trial court gave the following jury charges as to the theory of quantum meruit:
(Emphasis added.)
The trial court then gave the jury three forms relating to the written-contract claim. The first form allowed the jury to find for Foreman on that claim and to set his damages; the second form allowed the jury to find for Foreman on that claim based on quantum meruit; and the third form allowed the jury to find for the City on that claim.
The trial court then gave the jury two verdict forms relating to the city's counterclaim against Foreman based on the written contract. The first form allowed the jury to find for the City and to set the amount due the City for overpayment under the contract, and the second form allowed the jury to find for Foreman on the City's counterclaim.
The trial court also gave the jury a set of three separate verdict forms relating to the oral contract issues. The first form allowed the jury to find for Foreman on the contract claim and to set his damages; the second form allowed the jury to find for Foreman under the quantum meruit theory and to set the amount of recovery; the third form allowed the jury to find for the defendant on the oral contract claim.
During deliberations, the jury sent the following question to the trial court: "Can money be awarded for quantum meruit without declaring which written contract is the legal contract?" The trial court answered that the jury could give a quantum meruit recovery only if it found that neither of the written contracts was valid. The trial court emphasized that if the jury found that either of the written contracts was valid then it could not consider the quantum meruit claim at all.
The jury concluded its deliberation and returned with the following verdicts:
The record thus shows that, although the trial court correctly charged the jury as to the quantum meruit claim and gave clear answers to the jury's additional questions about the doctrine of quantum meruit, the jury misapplied the law it was given and returned one verdict finding both written contracts invalid and a second verdict finding one of the written contracts valid. We agree with the trial court that Foreman is entitled to a new trial, as a matter of law.
Foreman contends that, although the inconsistency exists in the verdicts relating to the written contracts, his claims based on the alleged oral contract should also be retried. He points out that when claims are tried together and inconsistent verdicts are rendered on those claims, sound practice requires that the verdicts be set aside without analyzing the evidence in an attempt to determine which result the jury intended. City of Tallassee v. Harris, 431 So. 2d 1177 (Ala. 1983). We agree that the issue of whether the parties had an oral contract is significantly tied to the issue of the validity of the written contracts. The City maintains that *762 the parties had no oral contract and that the terms of Foreman's downtown garbage pickup service were set by the second written contract. Thus, if on retrial the jury finds that the second written contract is not valid, it should determine whether the City entered an oral contract to compensate Foreman for the downtown garbage pickup. If on retrial the jury determines that the second written contract was valid, it should determine whether that contract set the terms for downtown garbage pickup or whether there was a separate oral contract on that matter.
The order granting Foreman's new trial motion is affirmed.
AFFIRMED.
HOOPER, C.J., and ALMON, HOUSTON, and INGRAM, JJ., concur. | April 26, 1996 |
1d6680d3-2d9c-45c0-af72-7933f4e11531 | Ex Parte Exide Corp. | 678 So. 2d 773 | 1950653 | Alabama | Alabama Supreme Court | 678 So. 2d 773 (1996)
Ex parte EXIDE CORPORATION.
(In re Eddie Walton DAVIS, et al. v. EXIDE CORPORATION, et al.).
1950653.
Supreme Court of Alabama.
May 17, 1996.
William G. Schopf, Kenneth E. Kraus, John J. Hamill and Veronica Gomez of Schopf & Weiss, Chicago, Illinois, Mike Brock of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, Horace G. Williams, Eufaula, for Petitioner.
James Allen Main and P. Leigh O'Dell of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, Adam M. Porter, Birmingham, and Walter B. Calton, Eufaula, for Respondents.
HOUSTON, Justice.
Following a hearing on a "Motion to Certify Class" filed in the action brought by Eddie Walton Davis, Pete Melvin McQueen, and Curtis Crews, individually and as class representatives, against Exide Corporation, the trial court, under Rule 23(b)(3), Ala.R.Civ.P., orally "certif[ied] the class."[1] We assume *774 that the class the court certified was the class the plaintiffs had requested that it certify, which was:
Exide petitions this Court to issue its extraordinary writ of mandamus ordering the trial court to decertify the plaintiff class.
The plaintiffs contend that Exide committed common law fraud and breached an implied contract by selling used or previously sold automobile batteries as new, first-quality batteries, and that Exide engaged in unconscionable conduct.
Ex parte Gold Kist, Inc., 646 So. 2d 1339, 1340-41 (Ala.1994).
Ex parte Blue Cross & Blue Shield, 582 So. 2d 469, 475 (Ala.1991).
What evidence was there before the trial court for it to find that the named plaintiffs, Davis, Crews, and McQueen, were members of the class of retail customers who reside in the State of Alabama and "who since 1991 purchased used or previously sold Exide batteries which were sold and marketed to them as new, first quality Exide batteries"?
Davis and Crews testified that they reside in Eufaula, Alabama; that they purchased Exide batteries from Carport Discount Auto Parts ("Carport") in Eufaula; and that these batteries were sold to them as new batteries in late 1993 and at various times in 1994. McQueen did not testify, and there is no evidence in the record indicating that McQueen resided in Alabama or that he had purchased Exide batteries that were sold to him as new batteries since 1991. The undisputed *775 evidence is that there is a 99.2% chance that the Exide batteries purchased by Davis and Crews from Carport were not "used or previously sold Exide batteries." What evidence did the plaintiffs present to show that they were within the .8% of all purchasers of the kind of Exide batteries that would make them members of the class that they purport to represent?
Davis and Crews did not testify that the Exide batteries they bought from Carport had been used or previously sold before they purchased them. Neither specified to the salesperson at Carport that he wanted an Exide battery, and each received Exide batteries, selected by the salesperson, that had a 55-month warranty. Davis was asked: "[Y]ou don't know for certain one way or the other whether the battery you bought had been used by anyone else before, do you?" Davis answered: "No, not personally I don't know. But, judging by the performance of the battery. When he [a Carport employee] told me both batteries I had bought had dead cells in them got me to wondering about them." Crews was asked: "[Y]ou personally don't know if any of these Exide batteries you bought had been previously sold to anybody else?" He answered, "All I know is that man [a Carport employee] sold me that battery as a new battery. I didn't go there [to Carport] to ask no questions, all I wanted was a new battery to crank my truck. Evidently, none of them worked. So, I got tired of buying them." The following questions were then asked to, and answered by, Crews:
The salesman or salesmen at Carport who sold the Exide batteries to Davis, Crews, and McQueen (if McQueen purchased such a battery, as is alleged) did not testify at the class certification hearing. No one testified that McQueen bought a used or previously owned Exide battery that was sold to McQueen as a new battery.
Davis and Crews testified that the poles on their batteries were black. Nicholas Stratigeas, senior vice president of regional sales and branch operations for Exide, testified, "If the post [on the batteries] was black, that means the battery was most certainly new," because over 90% of the lead Exide uses is recycled lead that has been melted down. This recycled lead causes the posts to become black, because the lead oxidizes very quickly after the battery has been built. Stratigeas testified that "most of the batteries you get will have black posts when you take off the terminal protectors." This was not refuted by the plaintiffs.
Davis purchased his first Exide battery in January 1994, for his 1987 Suzuki Samurai sport vehicle. In April, the battery went dead and it was determined that it had a dead cell in it. Davis received another battery in April, and in August that battery went dead and it was determined that it too had a dead cell. Crews bought an Exide battery from Carport "the last of 1993" for a 1972 Chevrolet pickup. The truck would not crank after "two or three days." He took the battery back to Carport and received another battery that "cranked three days and it wouldn't stay up." He got another battery that "cranked then it got slow in about a week. Then it quit." The third battery, he said, had "the hot poles where you put the terminals on it would `shooosh.' ... It went straight down over the poles, you know where."
During Crews's testimony, the following occurred:
Exide had a policy by which, if a battery had been in a customer's possession for 90 days or less and had not "visibly been installed in a car"[2] and passed a standard performance test, it could be resold as a new, first-quality battery. According to Stratigeas, a first-quality battery is a battery that passes all of Exide's standard performance tests, which, he said, means that the battery "is brought to a full-fledged charge, the voltage is checked to make sure that it has 12.57 volts, that the electrolyte level is filled in the battery, and the extra insurance test we do is a load test.... A load test simulates cranking in the battery to ensure that it will have a lasting life as opposed to a short life battery." The batteries that are shipped to local branch customers, such as Carport, receive two load tests, one at the factory and the other at the branch office. These previously owned batteries are covered by a full warranty. Whether the sale of these previously owned batteries as new is common law fraud (see BMW of North America, Inc. v. Gore, 646 So. 2d 619 (Ala.1994)) or breach of an implied contract of sale or unconscionable conduct goes to the merits of the underlying action and is not before us in our determination of whether the trial court abused its discretion in certifying the class. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-81, 94 S. Ct. 2140, 2152-54, 40 L. Ed. 2d 732 (1974). However, no evidence in the record indicates that these used or previously owned batteries that were sold as new had performance problems.
Exide has no way of knowing whether the batteries purchased by Davis or Crews, if those batteries could be presented in court, were previously sold batteries. When these batteries were sold to the named plaintiffs, Exide owned no part of Carport and had no control over Carport. Exide has no control over its retailers' practices in regard to which batteries they sell as first-quality batteries, nor does Exide have any control over what retailers tell customers about these batteries. Carport is not a named defendant. The plaintiffs included as fictitiously named defendants "other persons, firms, corporations, or other entities whose wrongful conduct caused or contributed to cause the injuries and damages to the Plaintiffs." However, because Carport is named as the retailer and is referred to in the testimony as the retailer from whom the plaintiffs purchased batteries, it is evident that Carport is not a fictitious defendant, because the fictitiously named defendants are further identified in the complaint by the statement that "all of [those defendants'] true and correct names are unknown to the Plaintiffs at this time, but will be substituted by amendment when ascertained."
There is no written order certifying the class in the record. However, the following comments by the trial court preceded the oral certification:
It does not appear that the trial court found that the named plaintiffs had purchased, as retail customers, used or previously sold Exide batteries that were sold and marketed to them as new, first-quality Exide batteries.[3] The trial court stated that a jury could reasonably infer that if a person bought a new battery with a "72-month" warranty and it lasted only a week to three weeks, then the battery was a refurbished battery that was sold as new. With only the evidence in the record, we cannot hold that a jury could reasonably infer that, but that goes to the merits of the case, which are beyond the scope of our concern in regard to this petition for the writ of mandamus. We can find no evidence in the record of any named plaintiff's having purchased a battery with a 72-month warranty. One of the named plaintiffs, Crews, did have batteries fail within the time limit mentioned by the trial court. The others did not. No evidence in the record indicates a difference in performance between a new battery and a previously owned battery that Exide sold as new. Stratigeas testified that 6.7% to 7% of all batteries sold as first-quality batteries are returned during the warranty period on those batteries.
Amason v. First State Bank of Lineville, 369 So. 2d 547, 549 (Ala.1979) (citations omitted).
Ex parte Hayes, 579 So. 2d 1343, 1345 (Ala. 1991).
The named plaintiffs bore the burden of proving each of the four prerequisites of Rule 23(a). Rowan v. First Bank of Boaz, supra. They, at least, did not prove that their claims were typical of the claims of the class they sought to represent. Therefore, the trial court abused its discretion in certifying the class.
The plaintiffs cite Ex parte Voyager Guaranty Insurance Co., 669 So. 2d 198 (Ala.Civ. App.1995), which involved a "conditional certification." No rehearing was sought in that case, and consequently Voyager did not petition this Court for certiorari review. The Court of Civil Appeals distinguished Voyager from Ex parte Blue Cross & Blue Shield, supra, because in Voyager, it said, the order of class certification was "merely a conditional order `pending further discovery and procedures.' " 669 So. 2d at 200. We need not address, in this opinion, whether we will *778 treat a conditional order certifying a class differently from a class-certification order such as was entered in Blue Cross and in this case.
WRIT GRANTED.
HOOPER, C.J., and MADDOX, SHORES, and COOK, JJ., concur.
KENNEDY and BUTTS, JJ., dissent.
[1] The oral comments of the trial court made before it announced "So, I certify the class" are set out in this opinion.
[2] Stratigeas testified that this meant that there were no imprints on the poles of the battery and the cases are not imprinted with battery hold downs.
[3] If the trial court intended to find that the named plaintiffs had purchased Exide batteries that were sold to them as new batteries but were, in fact, used or previously sold batteries, such a finding, based solely on nonperformance of the batteries, was speculative, for there was no evidence that nonperformance was a characteristic of such batteries, and the only evidence in the record suggests that there was no difference in performance between a new battery and the previously owned battery that Exide sold as new. | May 17, 1996 |
382b06b2-939a-4238-bbd0-605e07334c25 | Gates Rubber Co. v. Cantrell | 678 So. 2d 754 | 1941438 | Alabama | Alabama Supreme Court | 678 So. 2d 754 (1996)
GATES RUBBER COMPANY
v.
Phillip CANTRELL.
1941438.
Supreme Court of Alabama.
April 19, 1996.
Cary Schwimmer of Young & Perl, P.C., Memphis, Tennessee, Grant A. Wright of Ashe, Tanner, Moore & Wright, Tuscumbia, for Appellant.
J. Tony Glenn, Russellville, for Appellee.
PER CURIAM.
Pursuant to Rule 5, Ala.R.App.P., the defendant, Gates Rubber Company ("Gates"), appeals from an interlocutory order denying its motion to dismiss the plaintiff Phillip Cantrell's retaliatory discharge claim. The issue is whether, as a matter of law, Cantrell's claim is precluded by the language of a prior settlement agreement between the parties.
On August 19, 1990, Cantrell received an on-the-job injury while employed by Gates. Based on this injury, Cantrell made a worker's compensation claim. On June 24, 1994, Cantrell and Gates entered into a written settlement of that claim. The settlement agreement provided:
(Emphasis added.)
On the same day the agreement was executed by the parties, June 24, 1994, the trial court entered an order approving the settlement. Nine months later, on March 24, 1995, Cantrell filed this action against Gates, seeking damages for an alleged violation of the "retaliatory discharge" provision at Ala. Code 1975, § 25-5-11.1, a part of the Workers' Compensation Act.[1] Gates moved for a dismissal of this claim, pursuant to Rule 12(b)(6), Ala.R.Civ.P., for "failure to state a claim upon which relief can be granted." Gates argued specifically that the claim was barred by the earlier settlement agreement.
In support of its motion to dismiss, Gates submitted a copy of the settlement agreement, which the trial court considered in ruling on the motion to dismiss. Because the settlement agreement was a matter outside the pleadings, we understand the trial court to have treated Gates's Rule 12(b)(6) motion as a Rule 56 motion for a summary judgment. See Graveman v. Wind Drift Owners' Ass'n, Inc., 607 So. 2d 199 (Ala.1992) (discussing the situation where a Rule 12(b)(6) motion is converted to a Rule 56 motion for a summary judgment).
In most cases, perhaps, the critical issue in determining whether a summary judgment motion was properly granted or properly denied relates to whether there is a genuine issue of material fact. See Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988) (discussing the Rule 56 principle that a summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law). Here, however, the material facts are not in dispute. The issue here is simply whether the language of the settlement agreement entitles Gates to a judgment as a matter of law.
In denying Gates's motion, the trial court held simply that "the plaintiff's claim for retaliatory discharge is not barred by his Worker's Compensation settlement agreement." Cantrell argues that the trial court was correct in so holding, because, he says, the agreement only released Gates from paying "vocational rehabilitation benefits" and "compensation" benefits, "compensation" having a meaning, he says, consistent with the definition found at § 25-5-1(1).
Section 25-5-1(1) contains one of many definitions found at the beginning of the Workers' Compensation Act. In pertinent part, it defines "compensation," as that word is used within the provisions of the Act, see § 25-5-1, as "[t]he money benefits to be paid on account of [work-related] injury or death." The plaintiff says that he was releasing Gates from liability only for this type of benefits when he released Gates from liability for "compensation." Damages payable on a retaliatory discharge claim, says the plaintiff, would not fit within this definition of "compensation," and thus, he says, that claim was not within the matters settled by the agreement.
The language of the settlement agreement, settling claims as to "any and all liability now accrued or hereafter to accrue for compensation and vocational rehabilitation benefits," is not substantially different from the language this Court examined in Sanders v. Southern Risk Services, 603 So. 2d 994 (Ala.1992). In Sanders, this Court examined a settlement petition, which stated the terms agreed to by the parties in settlement of a workers' compensation claim. Among those terms was a provision for a "lump sum [payment] in full settlement of any and all claims for compensation benefits due and rehabilitation or retraining benefits due under the Workmen's Compensation Act of the State of Alabama." The agreement provided that upon payment of that sum "the employer shall be, and hereby is released from any and all claims." (Emphasis added.) The plaintiff later sued for damages based on a retaliatory discharge, pursuant to § 25-5-11.1. Id. at 995. As to this claim, the Court stated: "Unless there is evidence of fraud, a *756 settlement of an employee's claims under the Workmen's Compensation Act is conclusive of any other claims the worker may have." Id. In that case, the Court noted the absence of "credible evidence of fraud," id., and indicated that "the settlement agreement signed by all the parties ... on its face releases [the employer]" from any obligation for retaliatory discharge damages.[2]Sanders, 603 So. 2d at 996.
As it would relate to this case, Sanders indicates that a "settlement of any and all claims for compensation benefits due and rehabilitation or retraining benefits due" is "conclusive of any other claims," unless there is evidence of fraud, 603 So. 2d at 995, or the claim in issue is expressly excepted from the settlement agreement. 603 So. 2d at 996.
The plaintiff does not distinguish the situation in his case from the situation dealt with in Sanders. This case contains no suggestion of fraud, and, as in Sanders, there was no express reservation of the retaliatory discharge claim. See also, Ex parte Aratex Services, Inc., 622 So. 2d 367, 369 (Ala.1993) (discussing Sanders and the lack of such a reservation in Sanders and in Aratex).
We conclude that the trial court erred in denying Gates's motion. We therefore reverse the order of the circuit court and render a judgment for the defendant, Gates.
REVERSED AND JUDGMENT RENDERED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, and COOK, JJ., concur.
[1] Although § 25-5-11.1 does not expressly provide for damages as a remedy for a violation of its provisions, "damages [for such a violation] can be awarded in accordance the general law of torts." Caraway v. Franklin Ferguson Mfg. Co., 507 So. 2d 925, 926 (Ala.1987).
[2] The settlement in Sanders expressly excepted claims for "future medical expenses." The Court held that the release disposed of "all other obligations" of the employer to the plaintiff. | April 19, 1996 |
e03a59a7-33be-4972-ba86-8f421207160f | Ex Parte Northam | 689 So. 2d 854 | 1950930 | Alabama | Alabama Supreme Court | 689 So. 2d 854 (1996)
Ex parte Alan NORTHAM.
(Re WRANGLER, INC. v. Alan NORTHAM).
1950930.
Supreme Court of Alabama.
September 20, 1996.
Rehearing Denied December 13, 1996.
*855 C. Harry Green of Green, Wood & Howell, Hamilton, for Petitioner.
Rhonda Pitts Chambers and Donald B. Kirkpatrick II of Rives & Peterson, Birmingham, for Respondent.
BUTTS, Justice.
Alan Northam was employed by Wrangler, Inc., as a laborer. He was injured on the job when a cart rolled and hit his ankle. He sued for workers' compensation; after an ore tenus proceeding, the trial court awarded Northam benefits for 300 weeks for a 60% injury to the body as a whole and a 60% permanent partial disability. Wrangler appealed to the Court of Civil Appeals, which reversed. Wrangler, Inc. v. Northam, 689 So. 2d 853 (Ala.Civ.App.1996). We granted Northam's petition for certiorari review to determine whether the Court of Civil Appeals applied the correct standard of review and, if so, whether it erred when it reversed the trial court's finding of a permanent partial disability of 60% to the body as a whole and a 60% loss of ability to earn.
Northam's injury occurred on April 23, 1993. Because the injury occurred after August 1, 1992, Northam's case is governed by the Workers' Compensation Act as amended by Ala. Acts No. 92-537. We recently wrote the following in Ex parte Trinity Industries, 680 So. 2d 262 (Ala.1996), regarding workers' compensation cases:
Trinity Industries, 680 So. 2d at 268-69.[1]
The Court of Civil Appeals stated that it could not reverse a judgment of the trial court in a workers' compensation case if the trial court's findings were supported by substantial evidence. 689 So. 2d at 854. The Court of Civil Appeals applied this standard and determined that Northam had failed to produce substantial evidence that he had received a 60% injury to the body as a whole and that he was 60% permanently partially disabled.
Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989); Trinity Industries, at 268.
Northam was a 23-year-old employee who had attended high school and junior college. He was struck by a loaded cart of jeans just above the left ankle. His average weekly wage at the time of the injury was stipulated to be $364.76 and at the time of the accident he had worked for Wrangler for one year. Northam saw six doctors regarding his injury, none of whom assigned him an impairment rating. Dr. Keith Morrow, the first doctor to treat Northam, prescribed anti-inflammatory medication and placed the injured foot in a soft brace. Dr. Lloyd Dyas, the second doctor to treat Northam, put the foot in a more rigid brace and prescribed more medication after he determined there was damage to two ligaments in the foot or ankle. Dr. Dyas's treatment could not relieve Northam's pain, so he recommended that Northam see an orthopedic specialist, Dr. David Ostrowski. Dr. Ostrowski recommended nerve block treatmentsspinal injectionsto help with the injury. Northam testified that these would help for about one day to two and one-half days and that he had them done five times. Northam was seen by several other doctors; their diagnosis was reflex sympathetic dystrophy and their treatments consisted of several pain control methods.
Since the accident, Northam has had at least three surgical procedures. First, he had a tube surgically implanted in his back temporarily; the tube injected medicine into his back to control the pain in his hip, ankle, and back, all of which he testified was a result of the injury. He then had an electrode *857 placed in his back for the same purpose. Finally, he had a tube permanently placed in his back to inject medicine into his system. All of these surgeries were performed by Dr. Unal Tutak.
Northam stated that he had not been able to permanently return to work and that he continued to have problems with walking, standing, and lifting. He also testified that as of the trial date he continued to have pain in his ankle, hip, and back. He also said he continued to have numbness and hot and cold flashes, which the evidence suggested are symptomatic of reflex sympathetic dystrophy.
Northam had received no workers' compensation benefits at the time of the hearing and had not been compensated for the expense of driving 6,000 miles back and forth to visit the various doctors. At the time of the hearing, Northam was a full-time student at the University of Alabama and was majoring in computer science. His tuition, books, and living expenses were being paid for by the adult vocational rehabilitation service of the State Department of Education.
The record contains no evidence indicating an impairment rating from the doctors who treated Northam. The doctors did not remove Northam from work, even though before he left Wrangler's employ he had missed many days because of the injury. However, while medical testimony as to an employee's degree of impairment is probative, as is the testimony of a vocational expert, it is well settled that neither is required in order for the trial court to determine an employee's degree of impairment. See Stewart v. Busby, 51 Ala.App. 242, 284 So. 2d 269 (1973), and Bankhead Forest Industries, Inc. v. Lovett, 423 So. 2d 899 (Ala.Civ.App.1982). Thus, the lack of such testimony in this case does not conclusively mean that the trial court erred in assigning Northam a 60% permanent partial disability.
We conclude that the evidence presented in this case is of such weight and quality that fair minded persons in the exercise of impartial judgment could conclude that Alan Northam was 60% permanently and partially disabled as a result of his on-the-job injury. Therefore, it was error for the Court of Civil Appeals to reverse the findings of the trial court. We reverse the judgment of the Court of Civil Appeals and remand for that court to reinstate the findings and judgment of the trial court.
REVERSED AND REMANDED.
SHORES, KENNEDY, and INGRAM, JJ., concur.
COOK, J., concurs specially.
HOOPER, C.J., and MADDOX and HOUSTON, JJ., dissent.
COOK, Justice (concurring specially).
The focus in this case is whether there is substantial evidence to support the trial court's finding that Alan Northam is 60% permanently and partially disabled. The substantial evidence test, by its nature, requires that the court assess or weigh evidence and determine whether fair-minded persons exercising impartial judgment could reasonably infer the existence of the fact sought to be proved. West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). This Court is required by the rules of appellate review to determine whether substantial evidence exists to support the findings of the trial court, not whether the plaintiff satisfied his burden of proof. We must answer that question based on the evidence presented at trial. That evidence indicated, among other things, that Alan Northam had obtained a two-year associate's degree and was attending the University of Alabama, seeking a degree in computer science. It further indicated that he had limited work experience and that his work had been primarily manual labor. According to his testimony, he was undergoing treatment for considerable pain. As the main opinion indicates, for the treatment of pain he had had two other body-invasive temporary treatments before having a tube permanently placed in his back to inject medicine into his system.
The trial court is free to evaluate all of the evidence, either with or without physicians' impairment ratings, to determine whether an employee has had a loss of earning ability or *858 has incurred a vocational disability. I am therefore persuaded, based on all of the evidence, including Northam's past work experience and the treatment he is presently receiving for pain, that the trial court had before it substantial evidence to support its conclusion that Northam was 60% vocationally disabled. Successful management of the pain, as well as the ultimate completion of his university studies, would clearly affect the question whether he will remain disabled to the same degree; however, whether the pain can be successfully managed and whether he completes his studies are questions that will be resolved post-trial and do not present factors the trial court could have considered at the time this case was tried. For the reasons expressed herein, I concur in the opinion and judgment of the Court.
HOOPER, Chief Justice (dissenting).
The plaintiff did not present substantial evidence to support the trial court's finding that he had sustained a 60% permanent impairment. There was no evidence to support a finding that the plaintiff had suffered a 60% loss of ability to earn. The plaintiff sought treatment from a total of six doctors. None of the doctors found that he had any permanent impairment. None of them found that the plaintiff must miss work or that he should have any type of restrictions placed on his work. He presented no lay testimony other than his own. A court should not assign a 60% permanent impairment rating to an employee whose testimony is contradicted by six physicians from whom he sought treatment. I would affirm the judgment of the Court of Civil Appeals.
HOUSTON, Justice (dissenting).
I agree with the Court of Civil Appeals. That court, properly applying Ala.Code 1975, § 25-5-81, held that there was no substantial evidence in the record to support the trial court's finding that Northam had sustained a 60% loss of ability to earn. Ex parte Trinity Industries, Inc., 680 So. 2d 262 (Ala.1996), was a nonaccidental injury case; it has no bearing on this accidental injury case, except as it relates to the standard of review. The standard of review applied by the Court of Civil Appeals is consistent with Trinity Industries. Even though the Court of Civil Appeals noted that the standard of review in this case was governed by Whitsett v. BAMSI, Inc., 652 So. 2d 287 (Ala.Civ.App.1994), which this Court overruled in Trinity to the extent that the standard of review set out therein was inconsistent with the standard of review set out in Trinity Industries, the Court of Civil Appeals correctly set out the standard in a statement that is consistent with § 25-5-81 and with Trinity Industries: "This court will not reverse the judgment of the trial court in a workers' compensation case if the trial court's findings in the case are supported by substantial evidence." Wrangler, Inc. v. Northam, 689 So. 2d 853, 853 (Ala.Civ.App.1996).
Like the Court of Civil Appeals, I find no substantial evidence "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989); Trinity Industries, 680 So. 2d at 268. The fact "sought to be proved" was a 60% loss of ability to earn.
Beyond that, I think that Ala.Code 1975, § 25-5-57(a)(3)a.14. and 30. govern the workers' compensation benefits that could be awarded for Northam's injury.
[1] We note that the Court of Civil Appeals issued its decision before we decided Trinity Industries; however, the standard of review regarding substantial evidence is contained in § 25-5-81 and, thus, did not originate with Trinity Industries. | September 20, 1996 |
40693d7a-621e-4a8e-8c8d-f362335d7bc8 | Ex Parte Jackson | 516 So. 2d 768 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 768 (1986)
Ex parte Carnel JACKSON
(Re: Carnel Jackson v. State of Alabama).
84-1112.
Supreme Court of Alabama.
December 19, 1986.
Specially Concurring Opinion on Denial of Rehearing February 20, 1987.
L. Dan Turberville, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and Rivard Melson and William D. Little, Asst. Attys. Gen., for respondent.
TORBERT, Chief Justice.
This is a death penalty case arising from defendant Carnel Jackson's convictions under Code 1975, § 13A-5-31(a)(10) (repealed) (murder in the first degree wherein two or more human beings are intentionally killed by the defendant) and § 13A-5-31(a)(3) (repealed) (rape when the victim is intentionally killed by the defendant).
Following the jury verdicts of guilty on the charged offenses, a sentencing hearing was held in which the jury determined that the punishment should be death. The trial court then held its own sentencing hearing and sentenced defendant to death. The Court of Criminal Appeals, following the procedures outlined in Beck v. State, 396 So. 2d 645 (Ala.1980), affirmed defendant's *769 convictions and death sentence. Jackson v. State, 516 So. 2d 726 (Ala.Crim.App.1985).
On January 17, 1981, the bodies of the victims, Myra Faye Tucker and Terry Wayne Tucker, were discovered on an old mining road in Jefferson County. Both victims had been shot one time with a 12-gauge shotgun. Mr. Tucker had been shot in the back. The autopsy on Mrs. Tucker's body indicated that she had been shot in the chest area and that she had been repeatedly raped. The blood type of the seminal fluid found in Mrs. Tucker's body did not match the blood type of her husband, but it did match the blood type of defendant and one codefendant.
Within one week of the discovery of the murders, the police arrested defendant and two codefendantsJerry Steven Godbolt and Wayne Anthony Agee. At the time of the murders, defendant was 17 years of age, Agee was 19, and Godbolt was 21. During this same time, the police also recovered a 12-gauge shotgun from the front yard of Godbolt's mother. Wadding and spent shells found at the scene of the murders were later identified at trial as being from the type of shotgun found by the police.
At the time of his arrest, defendant refused to give a statement to the police concerning the incident. In September of 1981, however, defendant called the detective in charge of the Tucker murder case and requested that he come to the county jail. When the detective got to the jail, defendant informed him that he would be willing to testify against both Agee and Godbolt. The detective then read defendant the Miranda warnings and asked him if he wanted his attorney present for the statement. After acknowledging that he understood his rights and stating that he did not wish to speak with or see his attorney, defendant made a statement that was later used at trial. In the statement, defendant stated that he and his codefendants were on drugs at the time of the crime and that they intended to "rob some place." Defendant also stated that he had taken the shotgun from Godbolt and had killed Mrs. Tucker first and then Mr. Tucker.
The Court of Criminal Appeals gave a thorough examination of the issues Jackson has raised on appeal. We will discuss three of these issues in detail.
The Court of Criminal Appeals held that the Birmingham Division of the Circuit Court of Jefferson County had proper venue in this case. Jackson contends that the Birmingham Division lacked jurisdiction and that this action should have been brought in the Bessemer Division. In its opinion the Court of Criminal Appeals cited Agee v. State, 465 So. 2d 1196 (Ala.Crim. App.1984), cert. denied, 465 So. 2d 1196 (Ala.1985), for the propositions that the Bessemer Court Act of 1919, 1919 Ala. Local Acts 62, No. 213 (August 18, 1919) (Local Laws of Jefferson County, §§ 950-957, page 320), should be read as venue legislation rather than jurisdiction legislation and that the two divisions should be treated as if they were two separate counties. We agree.
"The Bessemer Cutoff legislation does not diminish the general jurisdiction of other circuit courts, either in Jefferson or other counties." Glenn v. Wilson, 455 So. 2d 2, 4 (Ala.1984). Although there was much testimony at trial that the murders in this case occurred in the Bessemer Division, there was some testimony that the murder scene was in the Birmingham Division. Venue may be established by the testimony of one witness. McCrary v. State, 398 So. 2d 752 (Ala.Crim.App.), cert. denied, 398 So. 2d 757 (Ala.1981).
Furthermore, at the hearing on defendant's motion to dismiss, Jackson and the State agreed that the evidence before the trial judge at that time showed that the bodies of the Tuckers were located within a quarter-mile of the line that divides the two divisions. The evidence showed that the Tuckers were killed where their bodies were found. Again relying on Agee, supra, the Court of Criminal Appeals held that since the two divisions are to be treated as if they were separate counties, then Code 1975, § 15-2-7, would come into effect. *770 Section 15-2-7 authorizes a finding of proper venue in either county when an offense is committed within a quarter-mile of the boundary between the two counties. This Court has not previously addressed the question of whether § 15-2-7 should apply to the two judicial divisions within Jefferson County. Since the legislation that created the two divisions in Jefferson County is venue legislation, Glenn, supra, we hold that the Court of Criminal Appeals correctly applied § 15-2-7.
While it was not error on the part of the trial court to deny Jackson's motion for change of venue to the Bessemer Division, we note that, based on the evidence before the trial court at the hearing on the motion, it would have been the better practice to transfer the case to the Bessemer Division.
Jackson also contends that Act No. 81-178, Alabama Acts 1981, the 1981 capital offense statute, repealed the statute under which the indictments against him were returned and that any prosecution pursuant to those indictments is now void. This argument is without merit. As this Court noted in Ex parte Julius, 455 So. 2d 984, 985 n. 1 (Ala.1984), "the repeal of §§ 13A-5-30 through -38 did not affect the applicability of those sections to conduct that occurred before July 1, 1981."
We have searched the record for any plain error or defect in the proceeding below, Rule 39(k), A.R.A.P., and have found none except that now to be discussed.
The most compelling of the issues raised by Jackson is whether his equal protection rights were violated when the prosecution used its peremptory challenges to strike all ten of the prospective black jurors from the venire. The United States Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), changed a defendant's burden of proof on the issue of the prosecution's using peremptory challenges to systematically exclude blacks from serving on the jury. The much more stringent burden of Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), was in effect at the time of defendant's trial, and the issue before us is whether a rule similar to the rule announced in Batson should be applied to this defendant's trial. We hold that a rule like the rule which the United States Supreme Court announced in Batson v. Kentucky, supra (that "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial," 476 U.S. at 96-97, 106 S.Ct. at 1722-23), is to be applied to Jackson's trial.
The United States Supreme Court has stated, "As a rule, judicial decisions apply `retroactively.' Robinson v. Neil, 409 U.S. 505, 507-08, 93 S. Ct. 876, 877-78, 35 L. Ed. 2d 29 (1973). Indeed, a legal system based on precedent has a built-in presumption of retroactivity." Solem v. Stumes, 465 U.S. 638, 642, 104 S. Ct. 1338, 1341, 79 L. Ed. 2d 579 (1984).
That Court, in several decisions, established the following three-pronged test for determining whether a newly announced standard of law should be given retroactive application: (1) the purpose to be served by the new standard, (2) the extent of reliance by law enforcement authorities on the old standard, and (3) the effect on the administration of justice of a retroactive application of the new standard. See e.g., Adams v. Illinois, 405 U.S. 278, 92 S. Ct. 916, 31 L. Ed. 2d 202 (1972); Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965). In Adams, supra, the three-Justice plurality noted:
405 U.S. at 280, 92 S. Ct. at 918.
The Batson Court recognized that more than a century ago Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L. Ed. 664 (1880), held that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of this race have been purposefully excluded. The Court noted that the Strauder decision laid the foundation for the Supreme Court's "unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn." 476 U.S. at 85, 106 S. Ct. at 1716. In Swain v. Alabama, 380 U.S. 202, 203-04, 85 S. Ct. 824, 826-27, 13 L. Ed. 2d 759 (1965), the Court ruled that "A State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause."
Batson reduced a defendant's burden of making a prima facie case of racial discrimination in the prosecution's use of peremptory strikes. The Swain burden has often been criticized. The United States Supreme Court noted that lower courts' interpretation of Swain "has placed on defendants a crippling burden of proof." 476 U.S. at 92, 106 S. Ct. at 1720. The Second Circuit Court of Appeals has called this burden a "mission impossible." McCray v. Abrams, 750 F.2d 1113, 1120 (2d Cir.1984). In the face of the harsh burden of Swain, several state courts have found that their state constitutions required a lesser burden on a defendant. See State v. Neil, 457 So. 2d 481 (Fla.1984); People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739 (1981); State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.App.1980); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S. Ct. 170, 62 L. Ed. 2d 110 (1979); People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978).
The Second Circuit in McCray, supra, gave an excellent summary of the state court cases cited above and their analyses of their state constitutions. The California Supreme Court found that "the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution." Wheeler, 22 Cal. 3d at 276-77, 148 Cal. Rptr. at 903, 583 P.2d at 761-62. In Soares, supra, the Supreme Judicial Court of Massachusetts wrote:
377 Mass. at 486, 387 N.E.2d at 515.
We particularly note the holding of the Florida Supreme Court in Neil, supra:
"Article I, section 16 of the Florida Constitution guarantees the right to an impartial jury. The right to peremptory challenges is not of constitutional dimension. The primary purpose of peremptory challenges is to aid and assist in the selection of an impartial jury. It was not intended that such challenges be used solely as a scapel to excise a distinct racial group from a representative cross-section of society. It was not intended that such challenges be used to encroach upon the constitutional guarantee of an impartial jury. As did the New York, California, and Massachusetts courts, we find that adhering to the Swain test of evaluating the peremptory challenges impedes, rather than furthers, article I, section 16's guarantee. We therefore hold that the test set out in Swain is no longer to be used by this state's courts when confronted with the allegedly discriminatory *772 use of peremptory challenges."
457 So. 2d at 486.
Although we know that the United States Supreme Court has not yet ruled on whether Batson v. Kentucky is to be applied retroactively, this Court does not need to await revelation from the federal judiciary when our own state constitution also guarantees to a criminal defendant the equal protection of the laws. Sections 1, 6, and 22, Ala. Const. 1901, combine to guarantee equal protection of the laws. City of Hueytown v. Jiffy Chek Co., 342 So. 2d 761 (Ala.1977). Analysis of equal protection issues under the United States Constitution is equally applicable to those same issues under the Alabama Constitution. Jefferson County v. Braswell, 407 So. 2d 115 (Ala.1981).
The doctrine of equal protection of the laws requires that the guarantee of trial by an impartial jury not be illusory. The defendant Jackson was under the Swain burden when he attempted to show the prosecution's alleged discriminatory use of its peremptory strikes. This was too great a burden. Our state constitution requires that Jackson be entitled to test the prosecution's use of its peremptory strikes under a rule similar to the one set forth in Batson v. Kentucky:
476 U.S. at 96-97, 106 S. Ct. at 1722-23.
Once the defendant has made a prima facie case of purposeful discrimination, then the prosecution must come forward with valid non-racial reasons for its strikes. The Florida Supreme Court has given an illustration of the prosecution's burden:
Neil, 457 So. 2d at 487.
No merely whimsical or fanciful reason will suffice as an adequate explanation. In light of the circumstances of the case, the *773 trial court must use its discretion in determining whether the prosecutor's reasons are adequate.
Since the prosecutor in this case was never required to give explanations for his striking all the blacks from the venire, we remand this case to the Court of Criminal Appeals for it to order further proceedings. If the trial court determines that the facts establish a prima facie case of purposeful discrimination and the prosecution does not come forward with race-neutral explanations for its strikes, then Jackson is entitled to a new trial.
REMANDED.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs in the result.
HOUSTON, Justice (concurring in the result):
I would await the decision of the United States Supreme Court as to whether Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), is to be applied retroactively in cases in which this issue was not preserved during trial. Clearly, Batson should be applied in this case because the issue was raised. The defendant is black; the victims were white; and all blacks were struck from the jury venire.
The defendant filed a timely motion to restrict prosecutorial strikes, in which the defendant alleged a systematic exclusion of blacks from jury panels by the district attorney's office through the use of peremptory challenges.
The state first struck a white male. The prosecutor's next ten consecutive strikes were the ten blacks remaining on the panel. Following the state's eleventh strike, at which time all blacks had been peremptorily struck, the defendant renewed his motion to restrict prosecutorial strikes. The defendant moved for a mistrial on the ground that the defendant had been denied his right to a jury trial by his peers due to the conduct of the state in systematically excluding all blacks from the jury to try the defendant. The state was offered an opportunity to be heard. It did not state any reasons for the use of peremptory challenges to exclude all blacks from defendant's jury.
I concur in the result.
MADDOX, Justice (Concurring specially).
Because the petitioner raised the question of the prosecutor's exercise of his peremptory challenges in the trial court in this case, and because his case is still pending on direct review, I agree that the case must be remanded to the trial court under the principles of law set forth in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and Griffith v. Kentucky, ___ U.S. ___, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). In other words, this case is within the "stream of similar cases" and defendant Jackson is "similarly situated" to defendants Batson and Griffith.
In Griffith v. Kentucky, the Court pointed out:
"Second, the use of a `clear break' exception creates the same problem of not treating similarly situated defendants the same. James Kirkland Batson, the petitioner in Batson v. Kentucky, and Randall Lamont Griffith, the petitioner in the present Kentucky case, *774 were tried in Jefferson Circuit Court approximately three months apart. The same prosecutor exercised peremptory challenges at the trials. It was solely the fortuities of the judicial process that determined the case this Court chose initially to hear on plenary review. JUSTICE POWELL has pointed out that it `hardly comports with the ideal of "administration of justice with an even hand."' When `one chance beneficiary the lucky individual whose case was chosen as the occasion for announcing the new principleenjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.'" (Emphasis added.)
___ U.S. at ___, 107 S. Ct. at 713-716.
This case does not present a situation in which the defendant did not preserve for review his constitutional claim. Cf. United States v. Wilson, 158 F. Supp. 442, 450 (M.D.Ala.1958), wherein Judge Johnson held that the failure of the defendant to raise any objections to the qualification of jurors prior to going to constituted a waiver of the objections. | February 20, 1987 |
9306dc0c-34e6-43ee-bca1-5dfb153e9f66 | Ex Parte AU Hotel, Ltd. | 677 So. 2d 1160 | 1941428 | Alabama | Alabama Supreme Court | 677 So. 2d 1160 (1996)
Ex parte AU HOTEL, LTD., an Alabama Limited Partnership, and Thelma Dixon, an individual.
(Re AU HOTEL, LTD., an Alabama Limited Partnership, and Thelma Dixon, an individual v. James E. MARTIN, etc., et al.).
1941428.
Supreme Court of Alabama.
March 8, 1996.
Rehearing Denied May 31, 1996.
*1161 Robert A. Huffaker and William H. Webster of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Petitioners.
David R. Boyd and W. Joseph McCorkle, Jr., of Balch & Bingham, Montgomery; and Lee Armstrong, General Counsel, Auburn University, for Respondents.
COOK, Justice.
AU Hotel, Ltd., and Thelma Dixon petition this Court for a writ of mandamus directing the Covington County Circuit Court to vacate an order transferring this action to Lee County. We grant the petition.
This dispute arises out of a series of negotiations and resultant agreements regarding the construction and operation of a conference center and hotel on the campus of Auburn University. The facilities began operating in 1988. AU Hotel, Ltd., operates the hotel under a sublease agreement between it and the Industrial Development Board of the City of Auburn. Auburn University operates the conference center under a sublease agreement with AU Hotel. The latter agreement required Auburn University to "use its best efforts to publicize the availability of the services provided by the hotel" in connection with its "publicizing events to be conducted at the conference center."
On December 1, 1993, AU Hotel and one of its limited partners, Thelma Dixon, a resident of Covington County, sued Auburn University and its former president, James E. Martin, a resident of Morgan County. The complaint, which named Martin in both his official and individual capacities, sought damages from Auburn University for breach of contract, and from Auburn University and Martin for, among other things, fraud and civil conspiracy, based on representations allegedly made to Dixon by Martin in Covington County regarding, among other things, projections of hotel business income. The complaint also sought "rescission of the agreements entered into between the parties" and a judgment requiring Auburn University specifically to perform the agreement to "use its best efforts to publicize the availability of the services provided by the hotel."
On December 30, 1993, the defendants moved to transfer the action to Lee County, the situs of Auburn University's principal place of business, on the ground that (1) venue was "improper" in Covington County, and, alternatively, that (2) a transfer would facilitate "the convenience of parties and witnesses," Ala.Code 1975, § 6-3-21.1. The trial courton the ground that venue was improper in Covington Countygranted the defendants' motion. Indeed, the order was "[b]ased solely upon the decision of" this Court in Ex parte Neely, 653 So. 2d 945 (Ala. 1995). That order is the subject of the mandamus petition before us.
Contending that venue in Covington County was improper, Martin and Auburn University oppose the mandamus petition on both statutory and nonstatutory grounds. The argument based on statute relates to Ala.Code 1975, § 6-3-2(b)(1) (where real estate is the "subject matter"). The other argument is based on a rule set out by this Court. We shall address the arguments in that order.
Section 6-3-2(b)(1) provides: "In proceedings of an equitable nature against individuals: (1) [a]ll actions where real estate is the subject matter of the action, whether it is the exclusive subject matter of the action or not, must be commenced in the county where the same or a material portion thereof is situated." Martin and Auburn University insist that real estate, namely, the conference center and hotel, is the "subject matter of [this] action." Referring to the contractual history of the development of the hotel and citing the counts of the complaint seeking rescission or, in the alternative, specific performance of the lease, they contend that this action is "much more than simply transitory." Brief and Answer in Response to the Plaintiffs' Petition for Writ of Mandamus, at 16. Consequently, they argue, § 6-3-2(b)(1) requires the prosecution of this action in Lee Countythe situs of the conference center and hotel. We disagree with this premise and its conclusion.
*1162 "A `transitory' action is one [that] could have arisen anywhere." Ex parte City of Birmingham, 507 So. 2d 471, 473 (Ala. 1987). By contrast, an action having real estate as its "subject matter" is an example of a "local action," that is, one that "could only have arisen in the particular locality where it did arise." Id. "[L]ocal actions `are in the nature of suits in rem ... which are to be prosecuted where the thing on which they are founded is situated.'" Reed v. City National Bank of Selma, 406 So. 2d 906, 909 (Ala.1981). This Court stated in Reed:
Id. at 906 (emphasis added).
"[F]or venue purposes an action on a lease is one in personam, not in rem, and is transitory and therefore may be brought in any county where other transitory actions could be brought." Ex parte Canady, 563 So. 2d 1024, 1026 (Ala.1990). Moreover, "[c]ontract actions are generally considered transitory even where damage to real property is involved." Ex parte Teledyne Exploration, 436 So. 2d 880, 882 (Ala.1983) (emphasis added).
A number of these principles are illustrated in Ex parte Diamond, 596 So. 2d 423 (Ala.1992). In that case, a general partnership composed of Sam Diamond (a Jefferson County resident) and Jake and Owen Aronov "acquired a leasehold interest in a parcel of land located in Montgomery County." Id. at 424. "In order to finance improvements on the property, the partnership borrowed money from Central Bank of the South (`Central Bank'), executing a note, a leasehold mortgage, and a security agreement to Central Bank...." Id. Subsequently, the partners "executed to Central Bank a continuing guaranty jointly and severally guaranteeing all indebtedness of [the partnership] up to the sum of $563,285.04." Id. Eventually, the Aronovs purchased the note from Central Bank and sued Diamond in Montgomery County, alleging that he owed them "his proportionate share of the remaining principal and interest ... on the note." Id.
Diamond moved to transfer the action to Jefferson County, where he resided. The Aronovs objected to the transfer, contending that the real estate located in Montgomery County was the "subject matter of the action." Id. The trial court denied Diamond's motion; he petitioned this Court for a writ of mandamus directing the court to transfer the action to Jefferson County. Id.
In granting the petition, we explained:
596 So. 2d at 425 (emphasis added).
Similarly, this case involves none of the concerns identified in Ex parte Diamond as involving real estate sufficiently to invoke § 6-3-2(b)(1). The complaint cannot be construed as alleging any injury to the real estate. Cf. Reed v. City National Bank of Selma, 406 So. 2d 906 (Ala.1981). Indeed, the principles discussed above compel the conclusion that this action is in personam and not in rem. The real estate located in Lee County is not the "subject matter" of this action as contemplated by § 6-3-2(b)(1).
Martin and Auburn University also oppose the mandamus petition on a nonstatutory rule, namely, that "suits involving public officials are properly maintained in the county of their official residence." Tri-State Corp. v. State, 272 Ala. 41, 46, 128 So. 2d 505, 509 (1961). The rule was stated in Tri-State Corp., in which this Court cited decisions of other jurisdictions. See also Hardin v. Fullilove Excavating Co., 353 So. 2d 779 (Ala. 1977); Alabama Youth Servs. Bd. v. Ellis, 350 So. 2d 405 (Ala.1977) ("action against a state agency or a state official in his official capacity [is] to be brought in the county of official residence").
As the trial court noted, the rule was recently applied in Ex parte Neely, 653 So. 2d 945 (Ala.1995). Because this case involves an action against Auburn University, a state institution "maintaining its principal place of business in Lee County," Ex parte Neely requires, the respondents contend, transfer of this action to Lee County. In other words, they insist that the trial court's order was correct as a matter of law.
The petitioners, however, contend that this case is controlled by Ala.R.Civ.P. 82(c), which provides:
(Emphasis added.) This argument relies on the fact that the action is against Martin in his individual, as well as his official, capacity. The petitioners contend that venue for an action against Martin alleging fraud in his individual capacity would be proper in Covington County, the county in which, the complaint alleges, the wrongful acts occurred. See Ala.Code 1975, § 6-3-2(a)(3) (ex delicto actions against individuals may be brought in the county "in which the act or omission complained of may have ... occurred"). On the basis of the fraud claim against Martin in his individual capacity, the petitioners argue, Rule 82(c) authorizes an action in Covington County as to Martinin his official capacityand as to the state institution, notwithstanding the general rule regarding venue for actions against state officials and agencies. In other words, they contend that because an action against Martin in his individual capacity would be proper in Covington County, Rule 82(c) authorizes the joinder of Auburn University, for which venuein the absence of Rule 82(c)would be improper.
During oral argument, Martin and Auburn University cited Ala. Const. 1901, amend. 328, § 6.11, which provides in part: "The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not ... affect the jurisdiction of circuit and district courts or venue of actions therein...." (Emphasis added.) This proviso, they contended, prohibits this Court from applying Rule 82(c) in the manner urged by the petitioners. More specifically, they argued that to allow the action to proceed in Covington County on the authority of Rule 82(c) would "change the law of venue as it has existed in this state for many years." Such a result, they proposed, is prohibited by § 6.11.
We have not heretofore addressed the relationship between the venue rule at issue in this case and Rule 82(c). Contrary to the *1164 arguments of Martin and Auburn University, Ex parte Neely is not controlling authority. In that case, we declined to issue a writ of mandamus directing the Madison County Circuit Court to vacate an order transferring to Montgomery County an action commenced against the State of Alabama and the commissioner of the Department of Conservation and Natural Resources. Although that case created an opportunity for a resolution of this issue, the petitioner did not invoke Rule 82(c). Consequently, we did not consider the relationship between Rule 82(c) and the venue of actions against state agencies and officials. Ex parte Neely is, therefore, inapposite here.
Also, the oral arguments of Martin and Auburn University misperceive or disregard the history of the principle embodied in Rule 82(c). To illustrate, we shall briefly review the historical background of that principle.
The general venue provision for actions against individuals contained in Ala.Code 1975, § 6-3-2, was first codified in the Code of 1852, which provided in pertinent part: "No freeholder of this state, having a permanent residence within it, must be sued out of the county of his residence, unless the suit be for the recovery of real property ..., when the suit must be instituted in the county where the land lies." Ala.Code 1852, § 2164. Notwithstanding the apparent restrictiveness of this section, the preceding adjacent section provided:
Ala.Code 1852, § 2163 (emphasis added). This provision authorizing a "branch summons" in an action in one county to a joint defendant residing in another county, notwithstanding its facial inconsistency with § 2164, was codified in successive statutory compilations without significant change, until 1886, when, still without significant change, it was accompanied by a more recent predecessor of § 6-3-2 in significantly altered form. That section provided in pertinent part:
Ala.Code 1886, § 2640 (emphasis added). The emphasized portions of this section, which authorized the commencement of an action against joint defendants in such county as would be proper for an action against any one of them, obviated any conflict with the branch summons provision.
Both provisions appeared without significant change in the Code of 1896, as § 3271 and § 4205, respectively. Those sections formed the basis of a decision in Eagle Iron Co. v. Baugh, 147 Ala. 613, 617, 41 So. 663, 664 (1906). That case involved an action by Baugh commenced in Marshall County against a Marshall County resident individual, and Eagle Iron Company ("Eagle Iron"), a corporation, as joint defendants. 147 Ala. at 614, 41 So. at 664. As a corporation, Eagle Iron was subject to being sued "in any county in which it [did] business by agent." Ala.Code 1896, § 4207. It was, however, operating in Etowah County and "had no place of business" in Marshall County. 147 Ala. at 614, 41 So. at 663.
The individual defendant was eventually dismissed from the action and, subsequently, Eagle Iron challenged venue through a plea in abatement. Id. Holding that the plea should have been allowed, this Court explained:
147 Ala. at 616-17, 41 So. at 664 (emphasis added).
The pertinent clauses of § 3271 and § 4205harmonized as to the venue of actions involving joint defendants by the Code of 1886remained without relevant change a part of Alabama's statutory compilations until this Court promulgated the Rules of Civil Procedure. See Ala.Code 1907, §§ 6110 and 5300 (branch summons); Ala.Code 1923, §§ 10467 and 9418 (branch summons); Ala. Code 1940, Tit. 7, §§ 54 and 185 (branch summons); Ala.Code 1958 (Recompiled), Tit. 7, §§ 54 and 185 (branch summons). Throughout that period, moreover, this Court continued to construe those clauses in a manner consistent with its holding in Eagle Iron Co. supra, namely, that a venue that is a proper venue as to one defendant is a proper venue for joint defendants, regardless of the residence of the joint defendants. See, e.g., Ex parte Western Ry. of Alabama, 283 Ala. 6, 214 So. 2d 284 (1968) (Jefferson County was the proper forum for an action commenced against a domestic corporation, which was not doing business in Jefferson County, where a joint defendant in the action was a foreign corporation that was doing business in Jefferson County, as long as the foreign corporation remained in the action); National Surety Co. v. First National Bank of Opelika, 225 Ala. 108, 142 So. 414 (1932) (Lee County was the proper forum for a joint action commenced against a foreign corporation doing business in Lee County and an individual residing in Tallapoosa County); Louisville & N.R.R. v. Strickland, 219 Ala. 581, 122 So. 693 (1929) (Wilcox County was the proper forum for an action commenced against a domestic corporation that was not doing business in Wilcox County, where a joint defendant was a foreign corporation that was doing business in Wilcox County).
The pertinent language of the general venue provision discussed above is, of course, still found in Ala.Code 1975, § 6-3-2(a), which provides in part:
(Emphasis added.) The branch summons statute, along with other provisions regulating the mode and procedures for commencing actions, has now been subsumed in the Rules of Civil Procedure promulgated by this Court in 1973. More specifically, its pertinent venue principle is now most succinctly expressed in Rule 82(c), as we stated in Roland Pugh Mining Co. v. Smith, 388 So. 2d 977, 979 (Ala.1980): "Rule 82(c) ... simply restates the statutes as heretofore construed by this Court in providing: Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought." Otherwise stated, the principle expressed in Rule 82(c) is consistent with the principle expressed repeatedly by the legislature since 1852, which principle is still legislatively mandated by § 6-3-2(a)(2)-(3). Contrary, therefore, to the arguments of Martin and Auburn University, Rule 82(c) merely preserves the principle expressedboth formerly and currentlyby the legislature.
*1166 Recently, we held that Ala.Code 1975, § 6-3-11 abrogated this principle in cases involving actions against counties and municipalities. See Ex parte Alabama Power Co., 640 So. 2d 921 (Ala.1994). However, neither § 6-3-11 nor any other statute prohibits the application of this principle in actions against state agencies or officials. In short, Rule 82(c) has not "affect[ed] the ... venue of actions," as Martin and Auburn University contend. Thus, § 6.11 is no impediment to the recognition of a Rule 82(c) exception to the state-defendant venue rule.
Indeed, this Court has already recognized at least two exceptions to the general rule, namely, where an alternate forum is provided specifically by statute, Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So. 2d 428 (1974); or where objections to venue are waived, Ex parte Dothan-Houston County Airport Authority, 282 Ala. 316, 211 So. 2d 451 (1968). Moreover, the principle embodied in Rule 82(c)as might be expected, given its longevity in our jurisprudence is based on the soundest of policy considerations. Applied to actions generally, it obviates, for example, the multiplicitous litigation that would otherwise result from severances of actions if every joint defendant were amenable to suit only in his or her own respective forum. These considerations are not inconsequential in actions against state defendants. We hold, therefore, that the joint-defendant venue principle as most succinctlybut not exclusivelyexpressed in Rule 82(c) constitutes another exception to the rule laying venue of actions against state officials and agencies in the county of official residence.
Martin and Auburn University also invite us to hold that the doctrine of forum non conveniens, as set forth in Ala.Code 1975, § 6-3-21.1, requires prosecution of this action in Lee County. They concede, however, that this issue was never addressed nor considered by the trial court, which based its decision, instead, "solely upon" its construction of Ex parte Neely, 653 So. 2d 945 (Ala. 1995).[1] We do not, therefore, address this issue. See Ex parte Blount, 665 So. 2d 205 (Ala.1995) (refusing to consider forum non conveniens as a ground for denying a mandamus petition, where that ground was never considered by the trial court).
A writ of mandamus will issue where the petitioner has demonstrated "a clear legal right to the relief sought." Ex parte Clark, 643 So. 2d 977, 978 (Ala.1994). The petitioners have demonstrated such a right in this case. Therefore, we grant the petition. The Covington County Circuit Court is directed to vacate its order transferring this action to Lee County.
WRIT GRANTED.
HOOPER, C.J., and SHORES, KENNEDY, and BUTTS,[*] JJ., concur.
MADDOX[**] and HOUSTON, JJ., dissent.
MADDOX, Justice (dissenting).
The majority holds "that the joint-defendant venue principle as ... expressed in Rule 82(c) constitutes [an] exception to the rule laying venue of actions against state officials and agencies in the county of official residence." 677 So. 2d at 1166. I must respectfully dissent.
In Ex parte Neely, 653 So. 2d 945, 947 (Ala.1995), this Court held that, "absent specific statutory authority to the contrary or waiver of objection to venue," the proper venue of an action against a State officer or a State agency is the county of the official residence of the State agency or State officer. In Neely, this Court expressed the public policy considerations behind this rule as being "directed toward preventing inconvenience, hindrance, and delay to the successful conduct of the functions of state government." Id. The trial court in the present case granted the defendants' motion to transfer the action to Lee County, based *1167 solely on this Court's Neely opinion; I believe that the trial correctly relied on Neely.
The petitioners argue that the trial court's reliance on Neely is misplaced and that Rule 82(c), Ala.R.Civ.P., which states that venue is proper against all claims if one of the claims is properly brought in a proper venue, is "specific statutory authority to the contrary." They further argue that the defendant Martin was sued in his individual capacity for fraud, and that the fraud complained of occurred in Covington County; they say, therefore, that § 6-3-2(a)(3), Ala.Code 1975, allows them to sue in Covington County, where the alleged tortious act occurred.[***] The petitioners argue that because venue is proper in Covington County on the fraud claim against Martin, in his individual capacity, venue is, therefore, proper in Covington County for all of their claims, citing Rule 82(c), Ala.R.Civ.P. They further contend that Rule 82(c) applies to a State agency or State officer, because Rule 1(a), which relates to the scope of the Alabama Rules of Civil Procedure, states that the Rules shall apply to "those [civil actions] in which the State of Alabama or a political subdivision thereof is a party." Rule 1(a), Ala.R.Civ.P.
The majority agrees with the petitioners, but attempts to circumvent the clear mandate of Neely by holding that the "joint-defendant exception" to Neely is expressed elsewhere, not exclusively in Rule 82(c). Based on my review of the relevant statutes, I do not find "specific statutory authority" supporting this new principle that the Court today adopts, and the Court does not cite any; such authority is required by the Neely decision. The Court, therefore, modifies or overrules the previous holdings in which it has stated that the proper venue for an action against a State agency or officer must be in the county of that agency or officer's official residence, regardless of the fact that the alleged injury did not occur there.
That the Court has departed from past precedent is demonstrated by the fact that it has adopted the petitioners' argument on the issue. As I understand their argument, they say that this Court, when adopting the Rules of Civil Procedure, intended to make the State and its agencies subject to all the Rules of Civil Procedure, including the venue provisions found in Rule 82(c).
This Court has absolutely no power to establish venue, either by Court rule or Court decision; and to ground its holding in this case upon an interpretation of Rule 82, in my opinion, establishes a dangerous precedent. The Alabama Rules of Civil Procedure are procedural rules and were adopted solely for the purpose of ensuring efficiency and uniformity in litigation.[] No rule of procedure and no decision of this Court can abridge, enlarge, or modify any substantive right of a party. That principle is clear from a reading of both the Constitution of Alabama and the applicable statutes. Amendment 328, Constitution of Alabama, 1901, § 6.11, states:
(Emphasis added.) Section 12-2-7, Ala.Code 1975, provides:
(Emphasis added.) It is clear from a reading of these constitutional and statutory provisions that the people have specifically provided that this Court has no power to affect the venue of actions in the circuit or district courts.
I recognize, of course, that no statutory provision specifically states that venue of actions against State officers is proper only in the county of their official residence, but the majority has not found any statute that supports its position either. I know that the statutes cited by the majority do not specifically state that a State officer or agency may be sued anywhere other than in the county of the officer or agency's official residence. In fact, the statutes cited by the majority are silent in this regard and do not support the majority's contentions. On numerous occasions, this Court has held that venue for an action against a State agency or a State officer is proper only in the county of the official residence of the agency or officer. See, Ex parte Neely, 653 So. 2d 945 (Ala. 1995); Ex parte Alabama Power Co., 640 So. 2d 921 (Ala.1994); Ex parte City of Birmingham, 507 So. 2d 471 (Ala.1987); Alabama Youth Services Board v. Ellis, 350 So. 2d 405 (Ala.1977); Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So. 2d 428 (1974); Tri-State Corp. v. State ex rel. Gallion, 272 Ala. 41, 128 So. 2d 505 (1961).
I have specifically examined the provisions of § 6-3-1 et seq., Ala.Code 1975, which pertain to the proper venue for actions brought in State courts, and I find no provision that specifically addresses the issue of the proper venue when a State agency or official is a defendant in a civil action. I did find that the legislature, shortly after this Court decided Ex parte City of Birmingham, 507 So. 2d 471 (Ala.1987), adopted an act to address the problem presented in that case, in which a city was sued in a county other than the county in which it was situated. See, Ala.Acts 1987, No. 87-391.[] Those acts, now codified as § 6-3-11, Ala.Code 1975, established the proper venue for all civil actions for damages for personal injury, death, or property damage filed against a county or a municipality as being the county where the city or county was located or in the county where the act or omission complained of occurred. Through this statute, the legislature extended the scope of our holding in Ex parte City of Birmingham, in which this Court announced that counties and municipalities should be given the same common law protection that had traditionally been given to State agencies and officers. Applying common law venue principles to that case, this Court held that the only proper venue for an action against a county or municipality was the county where that governmental entity was located. Ex parte City of Birmingham, 507 So. 2d at 474. Apparently, the legislature disagreed with this holding *1169 and chose to allow venue for actions against these entities to be proper also in the county where the act or omission complained of occurred; however, I cannot conclude from this action that the legislature intended to expand that venue principle to include entities and officers of the State.
I can interpret the adoption of § 6-3-11 only as suggesting that the legislature intended only to alter the common law rule establishing proper venue for governmental agencies in relation to counties and municipalities, and did not intend to alter the rule as to State entities and officers. If the legislature had intended to expand this rule in relation to all State agencies, then the proper time for it to do so would have been when it was adopting § 6-3-11, since the statute could have provided for specific venue rules applicable to all governmental agencies. The fact that the legislature did not include in this statute the agencies or officers of the State leads to the inference that the legislature intended only to change the common law rule as it related to cities and counties, and that entities and officers of the State would be governed by the common law as interpreted by court decision. In order to get a better understanding of the legislative intent in adopting Act No. 87-391, I have examined the House and Senate Journals that record the passage of Act 87-391 (§ 6-3-11) through the legislature. This examination revealed no indication that the legislature, while addressing the question of venue of actions against counties and municipalities, sought to address the venue of actions against State agencies or their officers or agents. Consequently, I believe that the rule relating to venue of actions when a State agency or officer is a defendant, as it existed at the time of the adoption of Amendment 328, still applies and accurately reflects the legislative intent concerning the proper venue for actions against State defendants. See, Tri-State Corp. v. State ex rel. Gallion, 272 Ala. 41, 128 So. 2d 505 (1961).
To allow a plaintiff to avoid application of the Neely rule by merely joining a defendant in his or her individual capacity will effectively destroy the protection provided to the State and its officers by the rule. The provision of Rule 82(c) cannot expand venue for actions against State agencies or officers, and the majority's holding seems to violate the very public policy set forth by the Court in Neely; I think it will cause the State and its officers great "inconvenience, hindrance, and delay" in their performance of governmental activities. State agencies and officers will now be required to travel throughout the State to defend actions in counties other than the counties of their official residence. As a result, the State must suffer the costs and inconvenience of being subject to being sued in any county. Additional funds will be necessary to finance the resulting increase in costs to travel throughout the State to defend lawsuits, the costs of hiring new attorneys, who will be necessary to supplement the attorney general's civil litigation staff, and the increased cost to the individual State employee, who will be subject to being sued in any county in the State.
There is another reason why I must dissent. The writ of mandamus is an extraordinary remedy, and one seeking it must show "(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So. 2d 889 (Ala.1991). It is well settled that "[i]n cases involving the exercise of discretion by a lower court, a writ of mandamus may issue to compel the exercise of that discretion; however, it may not issue to control the exercise of discretion except in a case of abuse." Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala.1990) (emphasis added).
Based on the foregoing, I am of the opinion that these petitioners, like those in Ex parte Neely, have not shown "a clear legal right" to have the trial court's transfer vacated. Accordingly, I must respectfully dissent; I believe that the petitioners' request for mandamus relief is due to be denied.
HOUSTON, J., concurs.
[1] As we noted previously in this opinion, Ex parte Neely is inapposite.
[*] Justice Butts did not attend oral argument, but he listened to the tape on December 15, 1995.
[**] Justice Maddox did not attend oral argument, but he listened to the tape on March 6, 1996.
[***] Section 6-3-2 states:
"(a) In proceedings of a legal nature against individuals:
". . . .
"(3) All other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred."
"All other personal actions" are those not based on a claim for recovery of land or claims based in contract. See, § 6-3-2(a), Ala.Code 1975.
[] The necessity for this Court's power to promulgate these procedural rules was discussed by this Court in Ex parte Ward, 540 So. 2d 1350, 1351 (Ala.1988):
"The reason for our rulemaking authority is the critical necessity of implementing and maintaining a procedural system whereby justice is administered fairly, uniformly, effectively, and expeditiously. Cf. Rule 1, Ala.R.Civ.P. If we were without such authority to serve as the central body charged with promulgating rules effective statewide, the bench and bar alike would undoubtedly be faced with a haphazard crazy-quilt of varying procedures from one circuit to the next. Although the lower courts are left to fashion some rules of practice or procedure for themselves, see, e.g., Ala. R.Civ.P. 83(a), even these rules are subject to our approval. [Rule 83 was amended effective April 14, 1992, so as to abolish all such local rules.]"
The Court goes on in Ward to discuss the specific limitations placed on this Court by Amend. 328, § 6.11, of the state Constitution. See Ex parte Ward, 540 So. 2d at 1351-52.
[] Act No. 87-391 was passed on July 14, 1987, approximately four months after we announced our decision in Ex parte City of Birmingham. | March 8, 1996 |
152cea5e-d76f-46da-b566-384439988b3a | Ex Parte Moody | 684 So. 2d 114 | 1941642 | Alabama | Alabama Supreme Court | 684 So. 2d 114 (1996)
Ex parte Walter Leroy MOODY, Jr.
(Re State of Alabama v. Walter Leroy Moody, Jr.).
1941642.
Supreme Court of Alabama.
April 19, 1996.
As Modified on Overruling of Rehearing September 27, 1996.
*116 Walter Leroy Moody, pro se.
Jeff Sessions, Atty. Gen., and Rosa Davis, Robert Morrow and Sandra Stewart, Asst. Attys. Gen., for Respondent.
PER CURIAM.
Walter Leroy Moody is charged with capital murder. His court appointed counsel sought funds to pay attorney fees, expenses, and expert fees. The trial court, following an ex parte proceeding, directed the state comptroller to immediately pay the expenses. The comptroller refused, arguing that § 15-12-21, Ala.Code 1975, provides that such fees are to be paid only after the trial concludes.
The State petitioned for a writ of prohibition, requesting that the Court of Criminal Appeals quash all ex parte orders of the trial court that directed immediate payment of the funds. The Court of Criminal Appeals *117 granted the writ and subsequently denied rehearing.
Moody then petitioned for certiorari review, claiming that the writ of prohibition ordering the trial court to set aside the ex parte orders violated his rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. We granted the petition to consider Moody's claims. Ex parte Moody, 658 So. 2d 446 (Ala.1995).
Immediately before we granted certiorari review, the trial court allowed Moody's appointed counsel to withdraw and allowed Moody to proceed pro se. Therefore, the issue whether Moody's court-appointed counsel was entitled to attorney fees, expenses, and fees for experts was found moot by this Court.
Notwithstanding those facts, the Court noted that the former attorney general had agreed to furnish to the trial court $35,000 in funds to supplement the attorney fees payable to Moody's court-appointed counsel under § 15-12-21(d), Ala.Code 1975. The former attorney general's agreement stated that providing the funds was a "one-time action, and there will be no others like it." It added: "This action in no way obligates the Attorney General to pay any amount of funds for any reason in this case or any other case. Likewise, the State is not in any way obligated to pay any funds for any purpose in this case or any other case, except to the extent specifically prescribed in [§] 15-12-21 through [§] 15-12-23...."
The trial court ordered the attorney general to deposit the $35,000 with the circuit clerk's office and ordered that payment of the funds be approved by the trial court. Through numerous periodic payments, the $35,000 was withdrawn by Moody's court-appointed counsel for payment of various expenses incurred during their two years of representing Moody before they withdrew.
This Court found that Moody's argument that the failure to provide interim payment of expenses for experts violates his constitutional rights was premature. Moody, the Court held, is entitled to expert assistance only if he makes a threshold showing, approved in advance by the trial court, that expert assistance is necessary and critical for trial, in accordance with Dubose v. State, 662 So. 2d 1189 (Ala.1995), and only if he presents evidence, e.g., by affidavit, that the expert will not testify without being partially or completely compensated before he or she testifies or before the conclusion of the trial. The writ of certiorari was quashed, and no application for rehearing was filed.
Subsequently, the trial court entered an order stating, "[I]n order to remove this impasse [Moody's allegation that his experts would not work without interim payment], it is necessary for the court to exercise its inherent authority to supervise pretrial matters." The trial court appointed an attorney, similar to a special master under the Rules of Civil Procedure, to conduct an investigation on behalf of the court, and only at the direction of the court, concerning interim payment of Moody's expert witnesses.
The trial court ordered that the "special master" "shall inquire of the expert witnesses of the defendant whether they will work for the defendant, provide reports, assist in preparation of his defense, and/or testify at trial, but receive reimbursement at the conclusion of the case as is required under Alabama law." The trial court ordered the special master to locate experts other than those named by Moody, who would be willing to aid Moody and not be paid until the conclusion of the trial. The trial court also ordered that the special master conduct the investigation without participation by the State or Moody and report its findings only to the trial court. The trial court later amended its order to delete any and all requirements that the special master locate experts other than those named by Moody, who would be willing to aid Moody.
Moody then filed a petition with this Court, along with additional materials, asking (1) that "this ... court ... take whatever action [is] necessary to prevent petitioner from being forced to trial before the constitutional questions raised by the State's refusal to provide funds necessary for [this] indigent petitioner to provide an adequate defense [have] been resolved"; and (2) "that this Court ... take whatever action [is] necessary for the proper Alabama court to rule on the *118 constitutional questions raised by the State's refusal to provide funds necessary to [this] indigent petitioner to prepare an adequate defense."
The issue whether Moody is entitled to certain experts and, if so, whether those experts are entitled to be paid in advance is no longer premature, based on the additional materials filed by Moody with his most recent petition. Those materials included ex parte orders entered by the trial court finding that the services of certain experts were necessary to assure the fairness of the trial. The trial court forwarded to this Court the special master's findings that 16 of the 24 expert witnesses requested by Moody had submitted affidavits stating that they would require receipt of advance payment to cover travel expenses for any trip in connection with this case and receipt of interim payment after completion of any work done in preparation for trial. Therefore, Moody complied with this Court's directions in Moody, 658 So. 2d 446, and his latest petition is timely.
The issues presented in this case have prompted this Court to expressly set out what an indigent defendant is entitled to concerning expert assistance. The United States Supreme Court has stated, interpreting the Fourteenth Amendment, that "justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake." Ake v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 1093, 84 L. Ed. 2d 53 (1985). "There can be no equal justice where the kind of trial a man gets depends upon the amount of money he has." Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956).
When an indigent defendant is involved in a criminal proceeding, the state must take certain precautions to "assure that the defendant has a fair opportunity to present his defense." Ake, 470 U.S. at 77, 105 S. Ct. at 1093. For background, we note that among these precautions is assuring that an indigent defendant has court-appointed trial counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), and court-appointed appellate counsel on direct appeal. Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). An indigent defendant is entitled to free trial transcripts on first appeal and the right to file a notice of appeal without first paying a filing fee. See Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956); Burns v. Ohio, 360 U.S. 252, 79 S. Ct. 1164, 3 L. Ed. 2d 1209 (1959). The state must also ensure that the defendant's counsel is effective, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In Ake v. Oklahoma, the Supreme Court held that an indigent defendant is entitled to expert psychiatric assistance at public expense. In Ake, the issue presented was whether the United States Constitution requires that an indigent defendant have access to a psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question. The Court held that the defendant was entitled to participation by a psychiatrist when psychiatric evaluation was important in preparing the defense. The relevant factors in making this determination are: (1) the private interest that will be affected by the action of the state; (2) the governmental interest that will be affected if the safeguard is to be provided; and (3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of erroneous deprivation of the affected interest if those safeguards are not provided.
When the defendant is able to make a threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent. Ake. "The obligation of the State is limited to the provision of one competent psychiatrist." Ake, 470 U.S. at 79, 105 S. Ct. at 1094.
Notably, the Supreme Court stated that it was not saying that the "indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own." Ake, 470 U.S. at 83, 105 S. Ct. at 1096. The Supreme Court's concern is that the indigent defendant have access to *119 a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
Although the Supreme Court has not specifically stated what "threshold showing" must be made by the indigent defendant with regard to the need for an expert, the Court refused to require the state to pay for certain experts when the indigent defendant "offered little more than undeveloped assertions that the requested assistance would be beneficial." Caldwell v. Mississippi, 472 U.S. 320 at 323, 105 S. Ct. 2633 at 2637, 86 L. Ed. 2d 231 (1985). As we stated in Dubose, the Supreme Court cases of Ake and Caldwell, viewed together, seem to hold that an indigent defendant must show more than a mere possibility that an expert would aid in his defense. "Rather, the defendant must show a reasonable probability that an expert would aid in his defense and [must show that] a denial of an expert to assist at trial would result in a fundamentally unfair trial." Dubose, 662 So. 2d at 1192, citing Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S. Ct. 2192, 95 L. Ed. 2d 847 (1987).
Most courts considering whether to apply Ake to nonpsychiatric experts have held that where an indigent defendant has established a substantial need for an expert, without which the fundamental fairness of the trial will be questioned, Ake requires the appointment of an expert regardless of his field of expertise, even a nonpsychiatric expert. Rey v. State, 897 S.W.2d 333 (Tex.Cr.App.1995). "There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given." Little v. Armontrout, 835 F.2d 1240 (8th Cir.1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2857, 101 L. Ed. 2d 894 (1988).
Alabama Courts have extended Ake to other types of expert witnesses necessary to the defense. Dubose, 662 So. 2d 1189 (defendant requested an expert on DNA); Ex parte Sanders, 612 So. 2d 1199 (Ala.1993) (defendant requested ballistics expert). Again, the indigent defendant must show a reasonable probability that an expert would aid in his defense and that a denial of an expert to assist him would result in a fundamentally unfair trial. The state is not obligated to "duplicate the legal arsenal that may be privately retained by a criminal defendant ... but only to assure the indigent defendant an adequate opportunity to present his claims fairly." Ross v. Moffitt, 417 U.S. 600, 617, 94 S. Ct. 2437, 2447, 41 L. Ed. 2d 341 (1974).
In Moore v. Kemp, 809 F.2d 702, 712, cited by this Court in Dubose, the Eleventh Circuit Court of Appeals stated:
Based on the foregoing, we conclude that for an indigent defendant to be entitled to expert assistance at public expense, he must show a reasonable probability that the expert would be of assistance in the defense and that the denial of expert assistance would result in a fundamentally unfair trial. To meet this standard, the indigent defendant must show, with reasonable specificity, that the expert is absolutely necessary to answer a substantial issue or question raised by the state or to support a critical element of the defense. If the indigent defendant meets this standard, then the trial court can authorize the hiring of an expert at public expense.
We now address the issue whether an indigent defendant requesting an expert witness is entitled to an ex parte hearing on that request.
*120 Generally, most hearings should be held in the open because of the concern that one be given notice and an opportunity to be heard. However, Congress created exceptions to this general rule when it enacted legislation to provide indigent defendants with ex parte hearings concerning expert assistance. 18 U.S.C. § 3006A(e)(1). Also, applications for subpoenas at public expense in federal criminal trials are made ex parte. Rule 17(b), Fed.R.Crim.P. The Alabama legislature has created some exceptions to this general rule. For example, a trial court may enter temporary orders it deems necessary to protect an adult or a child from abuse or from the immediate and present danger of abuse, upon good cause shown in an ex parte hearing. § 30-5-6; § 12-15-153, Ala.Code 1975.
Although we are mindful of the general rule and realize that few exceptions are made, we find it necessary to hold that an indigent criminal defendant is entitled to an ex parte hearing on whether expert assistance is necessary, based on the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
We find support in Ake, where the Supreme Court held that "when the defendant is able to make an ex parte threshold showing that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent." 470 U.S. at 82-83, 105 S. Ct. at 1096. The Supreme Court's holding providing for expert psychiatric assistance for indigents, as set out in Ake, arises from an earlier case regarding indigents, where it stated that "the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 433, 30 L. Ed. 2d 400 (1971). An indigent defendant's access to the "basic tools of an adequate defense" is a core requirement of the due process guarantee of a fundamentally fair trial. Ake, 470 U.S. at 77, 105 S. Ct. at 1093.
Requiring an indigent defendant to prematurely disclose evidence in a hearing where the state is present encroaches on the privilege against self-incrimination, which applies at all stages of a criminal proceeding. The privilege against self-incrimination "does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution." Maness v. Meyers, 419 U.S. 449, 461, 95 S. Ct. 584, 592, 42 L. Ed. 2d 574 (1975).
There should be equality between "indigents and those who possess the means to protect their rights." United States v. Tate, 419 F.2d 131 (6th Cir.1969). An indigent defendant should not have to disclose to the state information that a financially secure defendant would not have to disclose. In United States v. Meriwether, 486 F.2d 498, 506 (5th Cir.1973), the court stated:
The Sixth Amendment right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 n. 14, 25 L. Ed. 2d 763 (1970). This right includes access to expert witnesses where it is appropriate. United States v. Wright, 489 F.2d 1181, 1188 n. 6 (D.C.Cir.1973). Disclosure of the defense's trial strategy would impair the indigent defendant's right to effective assistance of counsel.
Looking to what other states have done with regard to this issue, we note that the legislatures in California, Kansas, Minnesota, Nevada, New York, South Carolina, and Tennessee have provided for an ex parte hearing when an indigent defendant has requested *121 expert assistance.[1] The courts in the following states have held that an indigent defendant is entitled to an ex parte hearing regarding expert assistance: Arkansas, Florida, Georgia, Hawaii, Indiana, Michigan, Oklahoma, Washington.[2]
The courts in Louisiana, North Carolina, and Ohio all have held that it is within the trial court's discretion as to whether an indigent defendant is entitled to an ex parte hearing on the necessity of an expert.[3] In particular, the Louisiana Supreme Court requires an indigent defendant to show that he would be prejudiced if the hearing was not held ex parte. State v. Touchet, 642 So. 2d 1213, 1221 (La.1994). We disagree with this requirement because we find no reason for first requiring an indigent defendant to show prejudice from a hearing where the state is to be a party when the right against self-incrimination, the right to effective assistance of counsel, and the right to equal protection are implicated in a hearing concerning expert witnesses needed for an adequate defense.
Three state courts have expressly held that there is no constitutional right to an ex parte hearing for an indigent defendant seeking expert assistance at public expense, i.e., that the denial of such a hearing is not a denial of equal protection or effective assistance of counsel and does not violate the privilege against self-incrimination.[4] The South Dakota Supreme Court concluded that the state should be involved when public funds are being spent. State v. Floody, 481 N.W.2d 242 (S.D.1992). However, we believe that the trial court, in an ex parte hearing, can adequately protect taxpayers from unwise expenditures of money while at the same time protecting the constitutional rights of indigent defendants.
Another issue presented in this case is whether an indigent defendant is entitled to the expert of his choosing. As stated earlier, the Supreme Court in Ake held that an indigent defendant is not entitled to a psychiatrist of his choosing, but is entitled to have a competent psychiatrist who will assist in evaluation, preparation, and presentation of the defense. In Whisenhant v. State, 482 So. 2d 1225 (Ala.Crim.App.1982), aff'd in part and remanded with directions, 482 So. 2d 1241 (Ala.1983), cert. denied, 496 U.S. 943 (1990), the Court of Criminal Appeals held that there exists no constitutional right to the appointment of a private psychiatrist of a defendant's own choosing, at public expense.
Accordingly, we hold that an indigent defendant is not entitled to the expert of his particular choice, but is entitled to a competent expert in the field of expertise that has been found necessary to the defense. That is, once the court has determined that there is a reasonable probability that expert assistance would aid in the indigent defendant's defense and that the denial of such expert assistance would result in a fundamentally unfair trial, the defendant is not entitled to name the particular expert he wants.
An indigent defendant has no right to shop for an expert to contradict experts for the state. Certainly, the trial court can consider the indigent defendant's request for a particular expert. However, the trial court may choose any competent expert in that particular field of expertise who would aid the defendant in evaluation, preparation, and presentation of the defense. Similarly, an *122 indigent defendant is not entitled to legal counsel of his choice, when counsel is to be paid by public funds, but rather is entitled to competent legal representation.
The factors the trial court should consider in choosing an expert, once it is determined that expert assistance is necessary, are: (1) the number of experts available to choose from; (2) what the indigent defendant expects the expert's testimony to prove at trial or how the defendant expects the expert's testimony would aid in the defense; (3) the indigent defendant's choice of expert; (4) other competent experts available; and (5) the anticipated costs of such an expert. This list of factors is not meant to be exhaustive; the trial court may consider any other relevant information regarding experts in the particular field of expertise.
The last question we must address is whether an expert for an indigent defendant can be paid before trial. Section 15-12-21(e), Ala.Code 1975, provides that within a reasonable time after the conclusion of the trial or ruling on a motion for a new trial or after an acquittal or other judgment disposing of the case, a bill for services rendered may be submitted by the clerk of the court to the comptroller for payment. We see no reason to contravene the mandate of the legislature and allow for experts aiding indigent defendants to be paid before trial. As stated earlier, an indigent defendant is not entitled to the expert of his choosing, when the expert is to be paid at public expense. Accordingly, any expert who requires payment before trial could be replaced by another person with expertise in the particular field.
To summarize: Once a defendant is found to be indigent, in order to be entitled to the assistance of an expert he must show a reasonable probability that expert assistance would aid in his defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial. The indigent defendant is entitled to an ex parte hearing on whether expert assistance is necessary under the aforementioned standard. No indigent defendant is entitled, at public expense, to an expert of the defendant's choice. The trial court may choose a competent expert in the relevant field of expertise. Last, pursuant to § 15-12-21, no expert is entitled to payment before trial.
The trial court held an ex parte hearing on the question of expert assistance for Moody. However, from the information before this Court, we conclude that we must order another ex parte hearing on Moody's request for experts, that hearing to be conducted in light of the considerations set out in this opinion. The hearing shall be transcribed, and the transcription should be sealed. If Moody is dissatisfied with the trial court's ruling on his request for expert assistance, he can raise that issue on appeal after the trial.
We point out that currently Moody is not represented by legal counsel and intends to act on his own behalf. At Moody's request, the trial court appointed a paralegal to aid Moody in his defense. If Moody desires to be represented by counsel, he may have counsel appointed. However, an indigent defendant who elects to represent himself is not entitled to the appointment of a paralegal. We find nothing in the Sixth Amendment right to effective assistance of counsel that includes appointment of a paralegal for an indigent who wants to proceed pro se. "When an accused manages his own defense, he relinquishes, as purely factual matter, many of the traditional benefits associated with the right to counsel." Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975). Once an indigent defendant chooses to proceed pro se, he takes on responsibilities that an attorney would have had in representing him and voluntarily relinquishes some aid that may have been available to him through an attorney. DeFries v. State, 597 So. 2d 742 (Ala.Cr.App.1992), citing Owen v. State, 272 Ind. 122, 396 N.E.2d 376 (1979).
Of course, an incarcerated pro se defendant is entitled to access to the courts. Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). In order to guarantee the constitutional right of access, incarcerated defendants must be provided with "adequate law libraries or adequate assistance from a person trained in the law." Bounds, *123 430 U.S. at 828, 97 S. Ct. at 1498. We note that nothing in the material filed by Moody alleges that he has been denied meaningful access to the courts, e.g., we find no claim that he has been denied permission to use the law library or other resources at the prison. Additionally, we note that "adequate assistance from a person trained in the law," as discussed in Bounds, does not mean that each inmate gets a specially appointed paralegal. In Bounds, the Supreme Court was referring to state prison programs that may provide for inmates trained as paralegals to work under a lawyer's supervision, the use of paralegals and law students as volunteers or in clinical programs, volunteer lawyer programs operated through bar associations, and the use of full or part-time staff attorneys to aid inmates in handling their cases.
Because there was some question as to whether the trial court could appoint a paralegal to assist Moody, Moody's paralegal may be entitled to payment for work done before the original mandamus petition was granted on April 19, 1996, under the common law theory of quantum meruit. It would be within the trial court's discretion to allow such payment if the paralegal can substantiate her claim.[5] Also, any experts who completed work for Moody pursuant to the trial court's order and have not been paid, may be paid for the work they actually did, provided that they can substantiate their claims.
The petition for the writ of mandamus is granted. A writ shall issue directing the trial court to proceed in accordance with this opinion.
WRIT GRANTED.
HOOPER, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur.
SHORES, J., recused.
[1] Cal.Penal Code § 987.9 (Deering 1985 and Supp.1992); Kan.Stat.Ann. § 22-4508 (1990 and Supp.1991); Minn.Stat. § 611.21 (1991); Nev. Rev.Stat.Ann. § 7.135 (Michie 1991); N.Y.County Law § 722-c (Consol.1992); S.C.Stat. § 16-3-26(C) (Supp.1992); and Tenn.Code Ann. § 40-14-207(b) (1991).
[2] Wall v. State, 289 Ark. 570, 715 S.W.2d 208 (1986); Clark v. State, 467 So. 2d 699 (Fla.1985); Brooks v. State, 259 Ga. 562, 385 S.E.2d 81 (1989), cert. denied, 494 U.S. 1018, 110 S. Ct. 1323, 108 L. Ed. 2d 498 (1990); Arnold v. Higa, 61 Haw. 203, 600 P.2d 1383 (1979); Stanger v. State, 545 N.E.2d 1105 (Ind.App.1989); People v. Loyer, 169 Mich.App. 105, 425 N.W.2d 714 (1988); State v. Newcomer, 48 Wash. App. 83, 737 P.2d 1285 (1987).
[3] State v. Touchet, 642 So. 2d 1213 (La.1994); State v. Ballard, 333 N.C. 515, 428 S.E.2d 178, cert. denied, 510 U.S. 984, 114 S. Ct. 487, 126 L. Ed. 2d 438 (1993); and State v. Peeples, 94 Ohio App.3d 34, 640 N.E.2d 208 (1994), aff'd, 74 Ohio St.3d 153, 656 N.E.2d 1285 (1995).
[4] State v. Apelt, 176 Ariz. 349, 861 P.2d 634 (1993), cert. denied, ___ U.S. ___, 115 S. Ct. 113, 130 L. Ed. 2d 59 (1994); State v. Floody, 481 N.W.2d 242 (S.D.1992).
[5] We reiterate that Moody is not entitled to a court-appointed paralegal who is paid by the state or a court-appointed paralegal who works on a volunteer basis. | September 27, 1996 |
4993a41f-3477-495a-83a2-b6f07181c5bd | Crown Cent. Petroleum Corp. v. Williams | 679 So. 2d 651 | 1950306, 1950383 | Alabama | Alabama Supreme Court | 679 So. 2d 651 (1996)
CROWN CENTRAL PETROLEUM CORPORATION
v.
Patricia WILLIAMS, as guardian and next friend of R.W., a minor.
Patricia WILLIAMS, as guardian and next friend of R.W., a minor
v.
CROWN CENTRAL PETROLEUM CORPORATION.
1950306, 1950383.
Supreme Court of Alabama.
April 26, 1996.
Rehearing Denied June 21, 1996.
*652 William Anthony Davis III and Jeannie Bugg Walston of Starnes & Atchison, Birmingham, for Crown Central Petroleum Corporation.
Charles M. Thompson of Thompson & Carson, Birmingham, for Patricia Williams.
David Barber, District Atty., Birmingham, for Amicus Curiae District Attorney's Office for the Tenth Judicial Circuit.
Matthew C. McDonald and A. Lynne Wiggins of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for Amicus Curiae Alabama Retail Association.
*653 HOUSTON, Justice.
The defendant, Crown Central Petroleum Corporation ("Crown"), appeals from a judgment entered on a general jury verdict for the plaintiff, Patricia Williams, as guardian and next friend of her son, R.W., a minor, in this action seeking damages for false imprisonment. (Case No. 1950306.) The plaintiff cross-appeals from the trial court's order requiring a remittitur of $150,000 of the $250,000 jury award. (Case No. 1950383.) We reverse and remand as to case number 1950306; we dismiss case number 1950383.
The evidence, viewed in the light most favorable to the plaintiff, shows the following: Late on the evening of September 5, 1992, officers from the Birmingham Police Department were dispatched to a Crown gasoline station/convenience store located on 20th Street in Ensley, to investigate a reported armed robbery. When they arrived at the station, the officers questioned Veronica Maiden, a Crown employee, who told them that two black males had approached the store and that one of them had "crouched down" and stuck the barrel of a handgun up into the store's security drawer and robbed her. (The store itself was locked, in accordance with company policy.) While searching the area for the suspects, the officers were informed by a passerby that two black males matching the suspects' description had gone together down an alley and into a nearby apartment complex. The officers eventually found the two suspectsK.A., age 18, and R.W., age 15, the plaintiff's son. The officers also confiscated a nickel-plated revolver that they believed to belong to K.A. The officers immediately transported K.A. and R.W. to the Crown station, where Maiden positively identified them as being the two males who had approached the store earlier. Maiden specifically identified K.A. as being the one who had threatened her with the gun. Maiden, according to the officers on the scene and the station's manager, Pat Sullivan, appeared to be very distraught. Maiden quit her job that night, stating that "she couldn't work in that environment." After obtaining the positive identification from Maiden, the officers took K.A. and R.W. into custody. M.A. Wallace, a detective with the Birmingham Police Department, later charged them both with robbery; R.W. was transported to a Jefferson County juvenile detention facility, where one of the arresting officers filed a complaint against him. Two days later, Detective Wallace filed a petition in the Family Court of Jefferson County, seeking to have R.W. adjudged a delinquent. However, because Maiden never appeared in court to testify, the delinquency petition was ultimately dismissed for want of prosecution.
Ms. Williams sued, alleging that Maiden had caused her son to be falsely detained and arrested and seeking both compensatory and punitive damages from Crown under the doctrine of respondeat superior. The trial court denied Crown's motions for a directed verdict and submitted the case to the jury. After the jury had returned a verdict for the plaintiff, the court denied Crown's motion for a judgment notwithstanding the verdict. The dispositive issue is whether the trial court erred in refusing to enter a judgment for Crown as a matter of law.[1]
False imprisonment consists of the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty. Ala.Code 1975, § 6-5-170. For there to be a false imprisonment, there must be some direct restraint of the person; however, it is not necessary that there be confinement in a jail or a prison. Any exercise of force, or the express or implied threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment. An employer may be held legally liable for a false imprisonment committed by one of its *654 employees while acting within the line and scope of his employment. Big B, Inc. v. Cottingham, 634 So. 2d 999 (Ala.1993).
Crown contends that its former employee, Maiden, did nothing more than report the commission of a crime to the police and then identify the plaintiff's son as having been in the company of an armed robber. According to Crown, the investigating officers took this information and used it, along with other information, to form the basis for their decision to detain and prosecute R.W. as an accomplice in the alleged robbery. Crown argues that under these facts, the plaintiff had no basis for a false imprisonment claim. The plaintiff contends that Maiden's account of the events of September 5, 1992, was just a hoax. The plaintiff maintains that Maiden stole money from Crown and made up the robbery story in order to hide her stealing. The plaintiff argues that Crown was liable for false imprisonment because, she says, Maiden, by a false identification, unlawfully caused the investigating officers to detain and arrest her son for robbery.
After carefully examining the record and the briefs, we conclude that Crown was entitled to a judgment as a matter of law. The undisputed evidence indicates that neither Maiden nor any other employee or agent of Crown detained R.W. or expressly directed that he be detained or arrested. To the contrary, all of the evidence indicates that Maiden was locked inside the store at the time of the incident and that K.A. and R.W. were never restrained from leaving the premises. Moreover, after identifying R.W., Maiden did not participate further in his arrest and prosecution. We recognize, as the plaintiff contends, that persons other than those who actually effect an arrest or imprisonment may be so involved with or related to the act or proceeding as instigators or participants therein as to be liable for false imprisonment. See Wofford Oil Co. v. Stauter, 26 Ala.App. 112, 154 So. 124 (1934); Bank of Cottonwood v. Hood, 227 Ala. 237, 149 So. 676 (1933); J.J. Newberry Co. v. Smith, 227 Ala. 234, 236, 149 So. 669, 671 (1933) ("[a] party may be guilty of false imprisonment in procuring an unlawful arrest by a police officer acting solely as a public officer, as where such party voluntarily aids and abets the officer; or by false charges induces the officer to make an arrest, though the officer may act in entire good faith"); Caldwell v. Standard Oil Co., 220 Ala. 227, 124 So. 512 (1929); United States Cast Iron Pipe & Foundry Co. v. Henderson, 22 Ala.App. 448, 116 So. 915 (1928); Clifton v. Grayson, 2 Stew. 412 (Ala. 1830); 32 Am.Jur.2d False Imprisonment § 42, 44, 45 (1982). See, also, Casino Restaurant, Inc. v. McWhorter, 35 Ala.App. 332, 46 So. 2d 582 (1950). However, it is well settled that liability for false imprisonment, like liability for malicious prosecution, cannot be predicated merely on a person's good faith act of giving information to a police officer tending to show that a crime has been committed or on a person's good faith act of identifying one suspected of a crime, for such involvement in another's detention or arrest is not regarded in the law as an instigation of or participation in the detention or arrest. See 32 Am.Jur.2d, False Imprisonment, § 45. In Wofford Oil Co. v. Stauter, 26 Ala.App. at 114, 154 So. at 126, the Court of Appeals noted the general rule:
In Caldwell v. Standard Oil Co., 220 Ala. at 228-29, 124 So. at 513, this Court discussed the good-faith aspect of a person's actions in reporting a crime and drew an analogy between false imprisonment cases and malicious prosecution cases:
In Pannell v. Reynolds, 655 So. 2d 935, 938 (Ala.1994), a malicious prosecution case, this Court, quoting Alabama Power Co. v. Neighbors, 402 So. 2d 958, 962 (Ala.1981), again made it clear that a person does not instigate an arrest by merely providing information that results in another's arrest, unless the person acts in bad faith (i.e., lacks any reasonable basis upon which to accuse another of a crime):
The plaintiff attempts to bring this case within the above-referenced line of cases recognizing that liability for false imprisonment may be predicated on a person's misconduct in accusing another of a crime. She argues that the jury could have found that Maiden had stolen the money and then blamed the theft on K.A. and R.W. The only evidence cited in support of this argument is 1) that the plaintiff's son denied that any robbery had taken place; 2) that the store was locked and that Maiden reported to the police that K.A. had threatened her with a gun through the security drawer; 3) that Maiden failed to testify during the juvenile proceedings; 4) that the store's surveillance camera was for some unknown reason not working on the night of the incident; and 5) that Maiden told the plaintiff that the plaintiff's son had not done anything. Even looking at this evidence in the light most favorable to the plaintiff, as we are required to do, *656 we fail to see how the jury could have reasonably inferred from it that Maiden actually stole the money and then made up the whole story concerning a robbery.
Initially, we note that the general denial of guilt on the part of the plaintiff's son, including his testimony that Maiden could not have been threatened with a gun through the security drawer, without additional corroborating evidence, did not create a jury question as to whether Maiden had probable cause to solicit the assistance of the police in apprehending him. See Lindsey v. Camelot Music, Inc., 628 So. 2d 314 (Ala.1993). In Lindsey, the plaintiff had been accused of shoplifting, but the charge was later dropped. This Court, in affirming the summary judgment for the defendant music store and its employees on the plaintiff's false imprisonment claim, stated:
628 So. 2d at 315-16.[2]
Furthermore, there was no evidence indicating that either the police or Crown ever *657 investigated Maiden as a suspect in the theft of the money, or that she had or could have had anything to do with the fact that the security surveillance system at the station was not working on the night of the incident. In addition, Maiden's statement to the plaintiff that the plaintiff's son had not "done anything" is not inconsistent with what she apparently told the police (i.e., that K.A. had threatened her with the gun and that R.W. was merely present at the time of the incident.) Finally, we note that the record does not explain why Maiden failed to testify in the juvenile proceedings.
An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in an action. Black's Law Dictionary (6th ed. 1990). In Miller-Brent Lumber Co. v. Douglas, 167 Ala. 286, 290, 52 So. 414, 415 (1910), this Court noted:
Later, in Batson v. Birmingham Trust & Savings Co., 241 Ala. 629, 632, 4 So. 2d 307, 310 (1941), this Court observed:
(Emphasis in original.) In order to return a verdict for the plaintiff, the jury had to find that Maiden had framed the plaintiff's son in order to mask her own criminal misconduct (i.e., theft of the money). However, because such a finding has no basis outside pure speculation or conjecture, it cannot support the verdict.[3]
For the foregoing reasons, the judgment entered on the jury's verdict is reversed, and the case is remanded for an order consistent with this opinion. The cross appeal is dismissed as moot.
1950306REVERSED AND REMANDED.
1950383DISMISSED.
HOOPER, C.J., and ALMON, COOK, and BUTTS, JJ., concur.
[1] Crown argues in the alternative that the trial court erred in denying its motion for a new trial. However, because we agree with Crown that it was entitled to a judgment as a matter of law, we pretermit any discussion of the new trial issues.
[2] Although Sullivan, the manager of the Crown Central station, testified at the trial, she was not asked about the mechanics of the security drawer or whether it was possible to stick the barrel of a gun into it. The only testimony pertaining to the security drawer was given by the plaintiff's son, who testified as follows:
"Q. Did you see [K.A.] with the gun that night?
"A. No.
"Q. Was there anything done except an attempt to get a Pepsi at that window on that occasion?
"A. (Shaking head.) You can't even stick your hands through the thing.
"Q. Come again?
"A. You can't even stick your hands through the thing.
"Q. You cannot stick your hands through the thing?
"A. No, you can't, but you have to put your money in the thing.
"Q. How does that work?
"A. You got a little cup, a little change cup where you put your money and they slide it in.
"Q. We've got to talk a little louder, [R.W.]. Tell us how that window works.
"A. There's a change cup you put your money in. You put your money in the little cup and then they will slide it in and slide it out.
"Q. Okay. Can't you reach up in there with a gun?
"A. No.
"Q. Is there a barrier preventing you from doing that?
"A. There's some little thing. I believe you have to bend your arm all the way up or something.
"Q. Have you ever tried to stick your arm in there?
"A. No."
(Emphasis added.) Even if this testimony could be considered on the question of probable cause, it does not necessarily indicate that it was impossible for someone to crouch down and stick the barrel of a gun through the drawer.
[3] We note that Crown does not argue that it was entitled to a judgment as a matter of law on the ground that Maiden would have been acting outside the line and scope of her employment if it had been sufficiently shown, as the plaintiff suggests, that she had stolen the money and falsely accused K.A. and R.W. | April 26, 1996 |
9b1d16c4-5320-4b28-bba8-03a9dc40458c | Alexander v. State | 679 So. 2d 227 | 1941733 | Alabama | Alabama Supreme Court | 679 So. 2d 227 (1996)
Ex parte State of Alabama.
Re David Lynn ALEXANDER
v.
STATE.
1941733.
Supreme Court of Alabama.
May 17, 1996.
*228 Jeff Sessions, Atty. Gen., and J. Thomas Leverett, Asst. Atty. Gen., for Petitioner.
Ben A. Fuller, Prattville, for Respondent.
SHORES, Justice.
David Lynn Alexander was convicted of the crimes of second-degree assault and third-degree assault, in the Circuit Court of Elmore County, on September 1, 1994. On October 14, 1994, he was sentenced. On September 21, 1994, he filed a notice of appeal; new counsel was appointed to handle the appeal, on September 23, 1994. On October 11, 1994, new counsel filed in the circuit court a motion pursuant to Ex parte Jackson, 598 So. 2d 895 (Ala.1992)[1], asking that the time for filing a motion for a new trial be suspended pending the completion of the trial transcript. That motion was granted. On December 9, 1994, the court reporter filed with the circuit clerk the transcript of Alexander's trial.
On January 13, 1995 (35 days after the filing of the trial transcript), Alexander attempted to file a motion for a new trial. The Court of Criminal Appeals issued an order on January 23, 1995, holding that the trial court had lacked jurisdiction to entertain the Jackson motion because it was filed more than 30 days after the filing of the court reporter's transcript with the circuit clerk. See Jackson, supra, at 897.
On January 26, 1995, Alexander's counsel filed a "motion for reconsideration." The Court of Criminal Appeals issued an opinion on March 29, 1995, holding that the 30-day period for filing a motion for a new trial did not run from the filing of the court reporter's transcript, as stated in Jackson, but from the time "notice of the completion of the transcript is served, either by mail or by person." Musgrove v. State, 659 So. 2d 229, 231 (Ala.Cr.App.1995). (Alexander's appeal was addressed in an opinion that also dealt with an appeal by James Paul Musgrove.) The Court of Criminal Appeals remanded Alexander's case for the circuit court to consider Alexander's motion for a new trial. After a hearing on that motion, the trial court granted Alexander a new trial. The Court of Criminal Appeals, on June 16, 1995, on return to remand, dismissed the appeal (without opinion), on the basis of the circuit court's order granting a new trial.
The State petitioned for certiorari review, which we granted, to consider the issue whether the Court of Criminal Appeals correctly held that Alexander's motion for new trial was properly filed.
In Musgrove, supra, the Court of Criminal Appeals addressed two problems with the implementation of the Jackson procedure. One problem concerned the difficulty attorneys were having in determining *229 when the 30-day period began to run for filing a motion for a new trial under the Jackson procedure. The court recognized that from the language in Jackson it appeared that the time ran from the filing of the transcript with the circuit clerk. Yet, the court recognized, many attorneys attempting to follow the Jackson procedure mistakenly believed that the time ran from the clerk's completion and service of the record on appeal. The Court of Criminal Appeals also recognized that in indigent cases, because there is no economic relationship between the court reporter and the appointed attorney, some court reporters were failing to notify the correct attorney that the transcript had been filed. To remedy both problems, the court held: "The 30-day time period for filing a motion for a new trial does not begin to run until notice of the completion of the transcript is served, either by mail or by person. If service is by mail, the time for filing a motion for a new trial shall run from the date the notice is mailed." Id., at 231.
After examining the Court of Criminal Appeals' opinion and considering the reasons stated therein, this Court concludes that that court has stated a well-reasoned remedy for the problems mentioned above. Accordingly, we hold that the Court of Criminal Appeals correctly treated Alexander's motion for a new trial as properly filed.
AFFIRMED.
HOOPER, C.J., and MADDOX, KENNEDY, and COOK, JJ., concur.
[1] In Ex parte Ingram 675 So. 2d 863 (Ala.1996), this Court overruled Jackson "to the extent that it allows a defendant's newly appointed appellate counsel to move to suspend the Rule 42.1(b), Ala.R.Crim.P., 30-day jurisdictional time limit for new trial motions." We stated in Ingram that "in any cases in which the defendant is convicted after the date this opinion is released [February 23, 1996], an ineffective-assistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala.R.Crim.P., expires, in order for that claim to be properly preserved for review." 675 So. 2d at 865. Because Alexander was convicted before February 23, 1996, the Jackson procedure is still applicable to this case. | May 17, 1996 |
14112497-b8cb-4f2e-b232-e346736b79be | Ex Parte Ala. Alcoholic Bev. Control Bd. | 683 So. 2d 952 | 1940558 | Alabama | Alabama Supreme Court | 683 So. 2d 952 (1996)
Ex parte ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, et al.
(In re Jean BARTLETT, d/b/a Package Palace v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, et al.).
1940558.
Supreme Court of Alabama.
February 23, 1996.
Rehearing Denied May 17, 1996.
*953 Jeff Sessions, Atty. Gen., Jeffery H. Long, Asst. Atty. Gen., and William P. Gray, Jr., Governor's Legal Advisor, for petitioner.
Jim L. DeBardelaben and Dorothy F. Norwood, Montgomery, for Jean Bartlett.
Jeff Sessions, Atty. Gen., and William A. Gunter IV, Deputy Atty. Gen., for amicus curiae Department of Conservation and Natural Resources.
William Prendergast and Lynn Sensabaugh Merrill, Asst. Attys. Gen., Department of Human Resources, for amicus curiae Alabama Department of Human Resources.
Mark J. Williams and Tracy S. McCooey, Montgomery, for amicus curiae Alabama State Employees Association, in support of appellee.
Jeff Sessions, Atty. Gen., and John R. Wible, Gen. Counsel, Department of Public Health, for amicus curiae Department of Public Health.
PER CURIAM.
The Alabama Alcoholic Beverage Control Board ("Board") petitioned this Court for certiorari review of the judgment of the Court of Civil Appeals holding that the Board's retail sale of alcoholic beverages violated Article IV, § 93, Alabama Constitution of 1901. We granted the writ, and we now reverse that holding. However, we affirm a separate aspect of that judgment.
The Court of Civil Appeals issued an opinion affirming in part and reversing in part the judgment of the Montgomery Circuit Court. In its opinion, the Court of Civil Appeals set out the following procedural history:
Bartlett v. Alabama Alcoholic Beverage Control Board, 683 So. 2d 947, 948 (Ala.Civ.App. 1994).
In its opinion, the Court of Civil Appeals noted that, after the adoption of Act No. 80-529 ("the 1980 Act"), individuals, businesses, and corporations within Alabama, licensed by the Board, were permitted to sell at retail alcoholic beverages for off-premises consumption. The court concluded that "these private retail liquor stores and the ABC Board's retail liquor stores are engaged in the same business and are in competition with each other." 683 So. 2d at 950 (citing State Dep't of Revenue v. B & B Beverage, Inc., 534 So. 2d 1114 (Ala.Civ.App.1987))[1]. *955 The court held that "the operation of the state liquor stores for the retail sale of liquor and other alcoholic beverages constitutes a business activity in competition with other business activities in private enterprise and is prohibited by, and in violation of, Article IV, § 93, Alabama Constitution of 1901." 683 So. 2d at 951. (Emphasis original.) The Court of Civil Appeals dealt with the fact that in setting the wholesale and retail prices of liquor sold to private retailers and to the public, the Board had failed to pass on certain discounts it had received from various liquor companies. The Court held that, given its holding that the Board had been engaged in private enterprise during the years in question, the Board was "under no obligation to pass on the discounts of almost $2,000,000 it received between 1983 and 1988, the amount stipulated to by the parties." 683 So. 2d at 952.
The holding that the Board's retail sale of alcoholic beverages violates § 93 is based on the court's implicit conclusion that the legislature impliedly repealed at least two provisions authorizing the Board to sell alcoholic beverages and to distribute net profits (§§ 28-3-43 and 28-3-74, Ala.Code 1975). Further, the court distinguished on its facts State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487 (1939), which was decided at a time when the State authorized only the Board to sell alcoholic beverages. Additionally, the court relied on Associated Industries of Alabama, Inc. v. Britton, 371 So. 2d 904, 907 (Ala.1979); that case, however, did not reflect all of the factors to be considered in determining whether legislation violates § 93.
In determining whether the State's operation of liquor stores in conjunction with the licensing of private retailers violates § 93, we must examine that constitutional provision. Section 93, as amended by Amend. 58, provides in pertinent part:
The clause at issue here"nor shall the state be interested in any private or corporate enterprise""has been construed to mean... that the State may not engage, alone or in concert with others, in business of a type generally characterized as private enterprise." Edmonson v. State Industrial Development Auth., 279 Ala. 206, 210, 184 So. 2d 115, 118 (1966)[2] (citing Murphy, supra).
In State ex rel. Wilkinson v. Murphy, supra, this Court held that the phrase at issue here is "broad enough to embrace a business operated solely by the State for trade and traffic." 237 Ala. at 335, 186 So. at 490. The Court nevertheless concluded that the "police power over liquor traffic is wholly uninfluenced and unaffected by any constitutional provision." 237 Ala. at 341, 186 So. at 496. The Court explained that "police power is inherent in the government, and while it may be set aside by the Constitution, yet in order to find that it has been so set aside the Constitution must plainly so indicate." Id.
The Court of Civil Appeals stated:
683 So. 2d at 950.
The holding in Murphy was that "[the] police power over the liquor traffic is wholly *956 uninfluenced and unaffected by any constitutional provision." 237 Ala. at 341, 186 So. at 496. The Murphy court stated, "[I]t is the peculiar function of the lawmakers to ascertain and determine when the welfare of the people requires the exercise of the State's police powers, and what are appropriate measures to that end, subject only to the power of the courts to adjudge whether any particular law is an invasion of rights secured by the Constitution." 237 Ala. at 338, 186 So. at 493.
Bartlett urges that the legislature repealed the statutes authorizing the operation of State liquor stores. The repealer clause of the 1980 Act, § 27, specifically repealed §§ 28-3-70 through -73 Ala.Code 1975, but these are not the only Code sections pertaining to the operation of the State liquor stores. For instance, § 28-3-43 provides that the Board shall have the power to "buy, manufacture and sell alcoholic beverages and to have alcoholic beverages in its possession for sale, as defined and enumerated in this chapter." See § 28-3-43(a)(1). Additionally, § 28-3-74, providing for the distribution of net profits from proceeds of Board stores, remains in effect.
To conclude that the legislature intended to withdraw the Board's authorization to operate liquor stores, this Court would have to conclude that the 1980 Act on the one hand and §§ 28-3-43 and 28-3-74 on the other hand are "so repugnant to each other that they [are] irreconcilable." Hurley v. Marshall County Commission, 614 So. 2d 427, 430 (Ala.1993). Additionally, as this Court stated in Merrell v. City of Huntsville, 460 So. 2d 1248, 1251 (Ala.1984), "repeal of a statute by implication is not favored, ... and a prior act is not repealed unless provisions of a subsequent act are directly repugnant to the former." See also City of Tuscaloosa v. Alabama Retail Ass'n, 466 So. 2d 103, 105-06 (Ala.1985) ("the degree of conflict required between two statutes in order to declare that one impliedly repeals the other is that of irreconcilability" and "`repeal by implication is not favored in the law'").
It is presumed that the legislature did not intend to make any alteration in the law beyond what it declares either expressly or by unmistakable implication. Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So. 2d 844 (1971). This Court is bound to presume that the legislature had knowledge of State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487 (1939), when it amended the 1937 Act in 1980. Wright v. Turner, 351 So. 2d 1 (Ala.1977). The language of the 1980 Act does not indicate that the State liquor stores were abolished when the operation of privately owned stores was approved; it appears from the Act that privately owned stores were to be permitted to operate in conjunction with State-owned liquor stores.
In Associated Industries of Alabama, Inc. v. Britton, 371 So. 2d 904 (Ala.1979), the Court upheld the "Prison-Made Goods Act of Alabama," (Ala.Acts 1976, No. 286). The plaintiffs argued that the Act violated § 93. This Court, referring to In re Opinion of the Justices No. 68, 247 Ala. 66, 22 So. 2d 521 (1945), stated the test to be "whether the operation of the enterprise was designed to make a profit." Britton, 371 So. 2d at 907. This Court in Britton stated:
Id. (emphasis original) (citing, with the signal "cf.," In re Opinion of the Justices No. 126, 256 Ala. 170, 54 So. 2d 68 (1951)). The Court noted in Britton that the Act limited the sale of the products to State and local governmental agencies only.
The Court of Civil Appeals read Britton as holding that the State is operating a business enterprise in violation of § 93 if a State activity involves sales upon the open market and is undertaken for profit. In determining whether the Prison-Made Goods Act violated § 93, this Court also examined the primary purpose of the Act:
Britton, 371 So. 2d at 907.
Also, in Britton this Court reaffirmed the principle that "[t]he police power of the state is co-extensive with the public interest to be safeguarded" and concluded that in regard to the Prison-Made Goods Act the generation of profit "is a secondary consideration, the primary aspect of the legislation being well within the police power and, accordingly, constitutionally permissible." 371 So. 2d at 907. As this Court explained in Murphy, the interest referred to in the phrase "nor shall the state be interested in any private ... enterprise":
237 Ala. at 335, 186 So. at 490. That language is quoted in Britton, and there, regarding the Prison-Made Goods Act of Alabama, the Court stated:
371 So. 2d at 907. (Emphasis original.) An examination of whether an act of the legislature violates § 93 must include a consideration of the purpose of the act itself.
Based on the foregoing discussion, we reverse that portion of the judgment of the Court of Civil Appeals holding that the Board's retail sale of alcoholic beverages violated § 93 of our State Constitution.
The Court of Civil Appeals also held that the Board was under no obligation to pass on to customers discounts amounting to nearly $2,000,000 between 1983 and 1988. The court based this holding on its conclusion that the Board's stores had been operating as private enterprises. The Court of Civil Appeals quoted the trial court's order:
683 So. 2d at 948.
We agree that the trial court's holding that whether to pass along those discounts was within the discretion of the Board. Accordingly, we hold that the Board is under no obligation to pass along those discounts; we affirm that portion of the Court of Civil *958 Appeals' judgment so holding, even though that court stated an incorrect rationale.
The judgment of the Court of Civil Appeals is therefore affirmed in part and reversed in part.
AFFIRMED IN RESULT IN PART; AND REVERSED IN PART.
SHORES, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
MADDOX, J., concurs specially.
HOUSTON, J., concurs in the result.
HOOPER, C.J., dissents.
MADDOX, Justice (concurring specially).
I concur completely in the majority's opinion, which follows the holding of this Court in State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487 (1939). In Murphy, this Court stated:
237 Ala. at 338, 186 So. at 493. I have no doubt that the power of the Legislature to regulate the purchase, manufacture, and sale of alcoholic beverages is not restricted by § 93 of Alabama's Constitution.
I write separately only to address an issue that is not addressed in the opinion of this Court or in the opinion of the Court of Civil Appeals, but was addressed by the trial courtthe power of ABC Board stores to sell nonalcoholic items. I find no authority under the Constitution that would permit the ABC Board stores to engage in the business of selling nonalcoholic items. Although the Court of Civil Appeals did not reach the issue of whether the sale of nonalcoholic items violated § 93, I did not want my concurrence in the majority's opinion to be understood as suggesting that I would hold that ABC Board stores can constitutionally sell such items.
HOUSTON, Justice (concurring in the result).
To me, the meaning of the constitutional prohibition "nor shall the state be interested in any private or corporate enterprise" hinges on the words "[to] be interested in," "private," and "corporate," rather than on the word "enterprise."
I concede that an "enterprise" is "[a] business venture or undertaking." Black's Law Dictionary 531 (6th ed. 1991). I concede that the sale of liquor and wine at retail for off-premises consumption is an enterprise. I concede that "`the state [had] the right and power to provide for the sale of intoxicating liquors solely through state stores,'" Bartlett v. Alabama Alcoholic Beverage Control Board, 683 So. 2d 947 (Ala.Civ.App.1994), quoting State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 339, 186 So. 487, 495 (1939), and that it had that right and power from the enactment of the original Alabama Alcoholic Beverage Control Act (Acts of Alabama 1937, No. 66) until 1980, when the legislature passed the Alabama Beverage Licensing Code (Acts of Alabama 1980, No. 80-529), which empowered the Alcoholic Beverage Control Board to issue licenses to individuals and corporations "[t]o sell liquor and wine at retail for off-premises consumption." Ala. Code 1975, § 28-3A-3(8). I concede that thereafter the ABC Board did issue licenses to individuals and corporations to sell liquor and wine at retail for off-premises consumption.
The majority of this Court did not agree with the State's argument in State v. Murphy, which was as follows:
237 Ala. at 335, 186 So. at 490. The majority, in rejecting this argument, wrote:
Id.
I concede that if this interpretation of the phrase in § 93 of our Constitution is correct, then the judgment of the Court of Civil Appeals must be affirmed, because the majority in Murphy held that § 93 was inserted into our organic law so as to prevent the State from being placed in business enterprises in competition with private individuals or corporations. Since the Board began in the 1980s to issue licenses to individuals and corporations to sell liquor and wine at retail for off-premises consumption, the State has been in competition with those licensees.
I was prepared to dissent, until I tried to make the phrase "[to] be interested in" mean "to be in competition with." It does not. The word "interested" is an adjective as it is used in § 93 of our state constitution. The adjective "interested" is defined as "having a share or concern in some affair or project." Webster's Third New International Dictionary 1178 (3 ed. 1971). Nowhere can I find any authority to support the majority's contention that the phrase "[to] be interested in" is synonymous with the phrase "to be in competition with." The Oxford Thesaurus, American Edition 242 (1992), does not list "compete" as a synonym of "interested," nor does it list "interested" as a synonym of "compete," pp. 70-71. Therefore, by this phrase in § 93, the State is prohibited from "having any share or concern" in any private or corporate enterprise.
"Enterprise" is defined as "[a] business venture or undertaking." Black's Law Dictionary 531 (6th ed. 1991). If the State is prohibited from being interested in any enterprise, then clearly the State would be prohibited from having any share or concern in any business venture or undertaking, including the retail liquor business.[3] However, the word "enterprise" is preceded by the phrase "any private or corporate." "[P]rivate" is defined as "[a]ffecting or belonging to private individuals, as distinct from the public generally." Black's Law Dictionary 1195. "Corporate" is defined as "[b]elonging to a corporation; as a corporate name. Incorporated; as a corporate body." Black's Law Dictionary 339. This is the same definition that appeared in the 1891 Black's Law Dictionary 278 (the oldest Black's that I have been able to consult). I cannot find a particular or different meaning for the phrase "corporate enterprise" in use at the time the 1875 Constitution or the 1901 Constitution was drafted.
Therefore, I conclude that the plain meaning of the phrase in § 93"nor shall the state be interested in any private or corporate enterprise"is that the State shall not have any share or concern in a business venture or undertaking owned by private individuals or corporations. Clearly, the ABC Board retail stores are not business ventures or undertakings owned by private individuals or corporations.
This plain meaning is substantiated by the drafters' inclusion of the phrase that follows the provision in question: "nor shall the state... lend money or its credit to any individual, association, or corporation." Taken together, these phrases preclude the State from having a share or concern in business ventures or undertakings owned by private individuals or corporations or from lending money or extending credit to any individual, any collection of individuals, or any corporation.
History also supports this plain meaning.
*960 The Constitution of Alabama of 1865 provided:
(Emphasis added.) This provision was changed in the 1868 Constitution to provide as follows:
(Emphasis added.)
Under the provisions of § 33 of the 1868 Constitution, the legislature enacted laws that resulted in what historians have referred to as the railroad scandals. In Rogers, Ward, Atkin, and Flynt's Alabama: The History of a Deep South State (1994), the following account appears on pages 253-54:
The president of the 1875 Constitutional Convention, in opening the convention, remarked:
(Emphasis added.) Minutes of the Constitutional Convention of 1875, pp. 6-7.
The Constitutional Convention of 1875 changed § 33 of the 1868 Constitution. It was first proposed that what is now § 93 of the present Constitution read: "Sec. 3. The State shall never engage in works of internal improvement, nor lend its credit in aid of such; nor shall the state be interested in, or lend money or its credit in aid of, any individual, association or corporation, for any purpose whatsoever." Minutes of the Constitutional Convention of 1875, pp. 38 and 109.
*961 The following appears on page 109 of these minutes:
Therefore, instead of the State's not being "interested in ... any individual, association or corporation, for any purpose whatsoever," the drafters of the Constitution of 1875 proposed, and the citizens of Alabama adopted, the phrase "nor shall the state be interested in any private or corporate enterprise."
In the resolution commending the proposed Constitution of 1875 to the citizens of Alabama, the delegates to the Constitutional Convention summed up their feelings of the necessity for a new constitution; that resolution contained the following remarks, which support the plain meaning of the phrase in § 93 now in dispute:
(Emphasis added.)
Because the ABC Board's retail stores are not business ventures or undertakings owned by private individuals or corporations, the State did not violate § 93 of the State constitution when through those stores it maintained a monopoly on the retail sale of liquor and wine for off-premises consumption. The mere fact that in the 1980s the State gave up its monopoly in this field so as to allow certain individuals and corporations also to sell liquor and wine at retail for off-premises consumption did not trigger a violation of § 93, for "interested in" does not mean "in competition with."
Therefore, I would hold that the phrase "nor shall the state be interested in any private or corporate enterprise" means merely that the State shall not be interested with individuals, associations, or corporations in the operation of a private or corporate enterprise; *962 and I would overrule that portion of State v. Murphy that is inconsistent with this interpretation. This Court must remember that it is construing a state constitution and not the Federal Constitution. State constitutions are not the source of the police power of state legislatures. 16 C.J.S. Constitutional Law § 58, p. 149 (1984) (citing Bolton v. White Motor Co., 239 Ala. 168, 194 So. 510 (1940)). A state's police power is inherent in its very existence and is not derived from a grant of power from a constitution. "[T]he legislature possesses and may exercise all legislative power, or power to enact statutes, of the state or people of the state, subject only to the limitations or prohibitions imposed by the state constitution." 16 C.J.S. at 150 (citing Van Hart v. deGraffenried, 388 So. 2d 1196 (Ala.1980)). Because of their nature, state constitutions must be "construed strictly in favor of the state, and as not divesting it or its government of any of its prerogatives, unless the intent to do so is clearly expressed." 16 C.J.S. at 150-51 (emphasis added). See also Sims v. Russell, 236 Ala. 562, 183 So. 862 (1938). Herein lies my problem with the majority opinion. The majority in this case, like the majority in Murphy, failed to analyze the effect that § 93 has on the scope of the state's police powers, in accordance with the principles enunciated above.
Because I am convinced that the only logical and historically accurate construction of the phrase "nor shall the state be interested in any private or corporate enterprise" is that it is a prohibition against the State's investing in privately owned business enterprises over which the state would have only limited control, I cannot concur with the majority's opinion as written and, therefore, I concur only in the result of that opinion.
HOOPER, Chief Justice (dissenting).
This Court should hold that the sale of alcoholic beverages by retail stores operated by the State of Alabama violates Art. IV, § 93, Alabama Constitution of 1901. That section states:
After the end of prohibition in 1933, liquor was sold on the open market in Alabama. In 1937 the Alabama legislature enacted the original Alcoholic Beverage Control Act, Act No. 66, Ala.Acts 1937. Under that Act, liquor for off-premises consumption was sold only through state-operated liquor stores.
In 1980, the Alabama legislature passed the "Alcoholic Beverage Licensing Code," Act No. 529, Ala.Acts 1980, codified at Ala. Code 1975, § 28-3A-1 et seq. The 1980 Act authorizes the ABC Board to license others to sell alcohol for off-premises consumption and repeals provisions of the 1937 Act regarding the operation of state operated liquor stores. The 1980 Act made no provision for the continued operation of state liquor stores.
The 1980 Act defined the function of the Alcoholic Beverage Control Board as that of licensing private entities to sell alcoholic beverages. Thus, the ABC Board has the function of regulating, controlling, and supervising alcoholic beverage licensees.
The Alabama Court of Civil Appeals in Bartlett v. Alabama Alcoholic Beverage Control Board 683 So. 2d 947 (Ala.Civ.App.1994), held:
The Board acknowledges in its brief, in Argument 1, that § 93 of the 1901 Constitution prevents the state from being involved in a private enterprise. There is no question that the sale of alcoholic beverages is an aspect of free and private enterprise. The Board goes on to argue that it can compete on the open market and cites in support of that argument State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487 (1939). However, the Court of Civil Appeals followed the reasoning and logic of Murphy in rejecting this very argument. The opinion of the Court of Civil Appeals stated:
*963 "The holding in Murphy was predicated on the fact that the State prohibited the sale of `intoxicating liquors by private individuals or corporations' and on the fact that the `for the sale of intoxicating liquors solely through state stores.' Murphy, 237 Ala. at 339, 186 So. at 495 (emphasis added [by the Court of Civil Appeals]). Those facts ceased to exist after the enactment of the 1980 Act and the coming into existence of the privately owned retail liquor stores. [Citations omitted.] Consequently, the holding in Murphy, having been based on a different factual situation, is not binding on this court in this case. We, however, follow the reasoning and logic as expressed in Murphy."
683 So. 2d at 950.
Thus, the repeal of the 1937 Act and the entering into the sale of liquor by private package stores made the operation of the state liquor stores or the retail sale of liquor by the civil government of Alabama a business activity in violation of § 93 of the Alabama Constitution of 1901. If State ex rel. Wilkinson v. Murphy held that the sale of alcoholic beverages by the State of Alabama is an exercise of the police power, it went too far. However, the logic of the opinion by the Court of Civil Appeals does not require that this Court address that issue. The 1980 Act redefined the function of the ABC Board, and that Board placed itself in competition with private enterprise when it continued to operate the state liquor stores. Except as to who receives the income, what difference does it make that state liquor stores sell alcoholic beverages? The only difference between state liquor stores and private liquor stores is who receives the income. The State's receipt of the income puts it in direct competition with private enterprise, and, logically, the state has an "interest" in a similar enterprise. It is unconstitutional for the State of Alabama to have such an interest. See § 93.
The Court of Civil Appeals, in State Department of Revenue v. B & B Beverage, Inc., 534 So. 2d 1114, 1117 (Ala.Civ.App.1987), concluded that "the state stores and package stores, in that they both sell liquor at retail, are engaged in the same business."
The state's police power authorizes it to control, regulate, and restrain the sale of liquor. The police power does not authorize the state to violate the Constitution, which clearly prohibits the state from engaging in a private enterprise. It matters not whether the State's civil service employees are running the State's liquor enterprise or not. Section 93 places no such condition or limitation on the type of interest the state is prohibited from having in a "private or corporate enterprise." No such limit on the meaning of § 93 is expressed or implied in the plain wording of that section. The policy decision that all alcoholic beverages were to be sold by private enterprise was a decision made by the Legislature in 1980. The judgment of the Court of Civil Appeals should be affirmed.
[1] In B & B Beverage, the question before the Court of Civil Appeals was "not one of howin what mode or mannerthe liquor traffic can be controlled, [but] one of equal protection of the law regarding an unequal taxation arrangement." 534 So. 2d at 1116 (citing State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487 (1939)).
[2] In Edmonson, this Court reviewed Act No. 662, Ala.Acts 1965 (Reg.Session), creating a public corporation known as the State Industrial Authority, composed of the director of the State Planning and Industrial Development Board, the director of revenue, and the director of finance. We concluded that Act No. 662 did not authorize the State or the Authority to engage in private enterprise and noted that the Authority uses the proceeds from the sale and issuance of its bonds to make grants to local public bodies.
[3] I tried to make the phrase "private or corporate enterprise" mean "enterprise." It does not. | February 23, 1996 |
ce68c5e1-6c05-48b7-bb01-ae2dbb4ced2d | Cantley v. Lorillard Tobacco Co., Inc. | 681 So. 2d 1057 | 1950537 | Alabama | Alabama Supreme Court | 681 So. 2d 1057 (1996)
Mikki CANTLEY, as administrator of the Estate of Harlon Godfrey, deceased
v.
LORILLARD TOBACCO COMPANY, INC., et al.
1950537.
Supreme Court of Alabama.
June 7, 1996.
Rehearing Denied October 4, 1996.
*1058 James C. King and Gina Thomas Cross of King, Ivey & Junkin, Jasper, and Charles E. Harrison of King, Ivey & Junkin, Fayette, for Appellant.
William C. Knight, Jr. and John C. Morrow of Burr & Forman, Birmingham, Harvey Jackson, Jr. and Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, and Robert E. Northrip, William L. Allinder and Billy R. Randles of Shook, Hardy & Bacon, Kansas City, Missouri, for Appellee Lorillard Tobacco Company.
Samuel H. Franklin and Lee H. Hollis of Lightfoot, Franklin, White, L.L.C., Birmingham, James R. Johnson and E. Elaine Rogers-Walsh of Jones, Day, Reavis & Pogue, Atlanta, Georgia, and Charles R. Stephens, Jasper, for Appellee R.J. Reynolds Tobacco Company.
HOUSTON, Justice.
Mikki Cantley, as personal representative of Harlon Godfrey, deceased, filed a wrongful death action against several tobacco-related defendants, alleging that those defendants had caused Godfrey's death; Godfrey had been a smoker.[1] The trial judge, based on federal preemption grounds, entered a summary judgment for the defendant Lorillard Tobacco Company ("Lorillard") and entered a partial summary judgment for the defendant R.J. Reynolds Tobacco Company ("R.J. Reynolds"). After the summary judgments were made final pursuant to Rule 54(b), Ala. R.Civ.P., the plaintiff appealed. All parties to this appeal agree that it raises only one issue: Whether the Public Health Cigarette Smoking Act of 1969 ("the labeling act of *1059 1969"), which amended the Federal Cigarette Labeling and Advertising Act of 1965, preempts the plaintiff's wrongful death cause of action.[2]
As a teenager, Harlon Godfrey began smoking two packs of cigarettes a day; he continued to do so until shortly before he died. The plaintiff alleged that Godfrey smoked only "Winston" cigarettes, manufactured by the defendant R.J. Reynolds, until he was in his middle 40's, and then changed to the "Kent Light" brand of cigarettes, a product of the defendant Lorillard. Sometime in the late 1980s, Godfrey was diagnosed with cancer of the hypopharynx and larynx. Chemotherapy and attempts at surgically eradicating the cancer failed. Godfrey died from cancer-related causes on April 3, 1991, at the age of 61.
Cantley filed this wrongful death action on April 2, 1993. Cantley originally pleaded three causes of actionfraudulent suppression; liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") for failure to warn of an unreasonable hazard; and liability under the AEMLD for design defect.[3] After raising federal preemption as a defense in their answers, R.J. Reynolds and Lorillard later filed separate summary judgment motions based solely upon federal preemption grounds, relying upon 15 U.S.C. § 1334(b) and Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992). Cantley voluntarily dismissed her failure-to-warn claim, conceding that that claim was clearly preempted under Cipollone. Following a hearing, the trial judge entered a summary judgment for Lorillard as to both of the remaining claims. The trial judge then entered a summary judgment for R.J. Reynolds as to those two remaining claims, to the extent that the plaintiff seeks redress for alleged tortious conduct occurring on or after July 1, 1969, the effective date of the labeling act of 1969.[4] The plaintiff appealed.
The second paragraph of Article VI of the United States Constitution sets out what is known as the Supremacy Clause:
The United States Supreme Court has repeatedly held that "[i]t is basic to this constitutional command that all conflicting state [laws] be without effect." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 2128-29, 68 L. Ed. 2d 576 (1981) (citing M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L. Ed. 579 (1819)). Therefore, when federal and state laws conflict, the federal law triumphs and preempts the conflicting state law.
Not only are conflicting state statutes and regulations preempted, but state common law rules are also preempted to the extent that they conflict with federal law. In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247, 79 S. Ct. 773, 780-81, 3 L. Ed. 2d 775 (1959), the United States Supreme Court held:
This principle was reaffirmed by the United States Supreme Court's opinion in Cipollone.[5]
In support of their summary judgments, R.J. Reynolds and Lorillard argue that the preemption provision found in the labeling act of 1969, codified at 15 U.S.C. § 1334(b), preempts Cantley's claims. That subsection states:
15 U.S.C. § 1334(b). Because preemption is a matter of federal law, we must look to federal authority, especially United States Supreme Court authority, for guidance in interpreting and applying the § 1334(b) preemption provision.
In Cipollone, the United States Supreme Court sought to interpret § 1334(b), as well as to determine the extent to which the labeling act of 1969 preempts state law, including state common law causes of action. Our task of determining whether one or both of Cantley's claims are preempted by the federal labeling act is made more difficult by the fact that that portion of Justice Stevens's Cipollone opinion that states which common law causes of action are federally preempted, was joined by only three other Justices. But when the plurality portion of the Cipollone opinion is considered in conjunction with the other two opinions concurring in part and dissenting in part, a clear rule of law emerges.
In Cipollone, only Justice Scalia and Justice Thomas took the position that all common law causes of action against cigarette makers for smoking-related injuries and deaths are preempted by the labeling act of 1969. The other seven Justices agreed that at least some state law causes of actions against cigarette makers have not been preempted by Congressional action.[6] Furthermore, Justice Stevens, joined by six other Justices in the first portion of his opinion, stated:
505 U.S. at 517, 112 S. Ct. at 2618. Cipollone, therefore, clearly establishes two principles: first, that this Court need consider only whether § 1334(b) expressly preempts a complainant's claims, and second, that § 1334(b) does not preempt every conceivable *1061 common law claim seeking redress for smoking-related injuries and deaths.
Justice Stevens, writing for himself, Chief Justice Rehnquist, Justice White, and Justice O'Connor, formulated the following test to determine whether a common law cause of action against a cigarette maker is preempted by § 1334(b):
Cipollone, 505 U.S. at 524, 112 S. Ct. at 2621. After considering the several Cipollone opinions as a whole, we, like the majority of other courts that have attempted to apply the Cipollone holding,[7] feel compelled to apply the test and reasoning enunciated by Justice Stevens in the plurality portion of his opinion. Justice Stevens's pragmatic middle-of-the-road approach in grappling with the very difficult issue of federal preemption of common law causes of action seems in this Court's opinion to comport with the plain meaning of § 1334(b).[8]
Applying Justice Stevens's reasoning first to the question whether Cantley's fraudulent suppression claim is preempted by federal law, we must conclude that it clearly is. Because § 1334(b) "pre-empts... the imposition of state-law obligations `with respect to the advertising or promotion' of cigarettes[,]" claims that a cigarette maker concealed material facts are preempted insofar as those claims rely on a state law duty to disclose such facts through advertising or promotion methods. Cipollone, 505 U.S. at 528, 112 S. Ct. at 2623-24. A fraudulent suppression claim against a cigarette maker seeking relief based on smoking-related illness or death can avoid federal preemption only if the claim is based "on a state law duty to disclose [the allegedly concealed material] facts through channels of communication other than advertising or promotion." Id.
Cantley's fraudulent suppression claim merely alleged generally that the defendants had failed to inform Godfrey of the risks of smoking. Because manufacturers in the position of the defendants R.J. Reynolds and Lorillard can ordinarily communicate directly with consumers like Godfrey only through "advertising or promotion" channels of communication, we must conclude that Cantley's fraudulent suppression claims, as pleaded, are inevitably based upon a "state law duty to disclose ... facts through ... advertising or promotion" channels of communication and, therefore, that they preempted. Id. The trial judge properly entered summary judgments against Cantley's fraudulent suppression claims.
The nature of the legal duty upon which Cantley's design-defect claim is predicated is much different, though. A design-defect claim is premised upon a common law duty, imposed upon manufacturers and distributors, not to distribute improperly designed or ill-conceived products[9] and is not *1062 premised upon any duty to communicate information to the buying public. Although the United States Supreme Court in Cipollone did not have before it the issue whether design-defect claims are federally preempted, Justice Stevens made it clear that design-defect claims would not be preempted under the rule he enunciated in Cipollone:
Cipollone, 505 U.S. at 523, 112 S. Ct. at 2621 (emphasis added).[10]
Because Cantley's AEMLD design-defect claims are not predicated upon a common law duty with respect to the method or manner in which cigarette manufacturers advertise or promote their products, we must conclude that those claims are not preempted by federal law. Cipollone, 505 U.S. at 524, 112 S. Ct. at 2621-22. The summary judgments for R.J. Reynolds and Lorillard are reversed insofar as they relate to Cantley's AEMLD design-defect claims, and this case is remanded for further proceedings consistent with the principles set out herein.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOOPER, C.J., and SHORES, INGRAM, and BUTTS, JJ., concur.
[1] The trial judge had previously entered a summary judgment for the defendant Retha Greathouse, the owner of one of the stores where the plaintiff alleged Godfrey had bought cigarettes. Cantley did not appeal from the summary judgment for Greathouse.
[2] This opinion deals with a subject of great current interest, both in fact (see, e.g., Jonathan Franzen, "Sifting the Ashes," The New Yorker, pp. 40-46 (May 13, 1996)), and in fiction (see, e.g., John Grisham, The Runaway Jury (Doubleday, June 1996)).
[3] Although Cantley asserts in her brief that her complaint also contained a fourth cause of action, fraudulent misrepresentation, we find no allegations in her complaint to support such a claim.
[4] The United States Supreme Court, in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992), held that the preemption provisions contained in the "1965 [Labeling] Act only pre-empted state and federal rulemaking bodies from mandating particular cautionary statements and did not pre-empt state-law damages actions." Id. at 519-20, 112 S. Ct. at 2618-19.
Because Godfrey did not begin smoking Lorillard's cigarettes until after the effective date of the Labeling Act of 1969, the plaintiff acknowledges that her claims against Lorillard can survive only to the extent that they are not preempted by the 1969 act.
[5] Although the portion of the Cipollone opinion written by Justice Stevens, which holds that certain common law causes of action are preempted by the labeling act of 1969, was joined by only three other Justices, a total of six Justices agreed that state common law causes of action could be, and sometimes are, subject to federal preemption. The members of the four-Justice plurality (Justice Stevens, joined by Chief Justice Rehnquist, Justice White, and Justice O'Connor) and the two other Justices who concurred in part and dissented in part (Justice Scalia, joined by Justice Thomas) merely disagreed as to whether the labeling act preempted all state common law causes of action seeking relief against cigarette manufacturers for smoking-related illnesses and deaths, as Justice Scalia argued, or just certain causes of action, as Justice Stevens asserted.
[6] In fact Justice Blackmun, joined by Justice Kennedy and Justice Souter, argued in his opinion concurring in part and dissenting in part that no state common law causes of action are preempted by § 1334(b), because "neither [labeling act] provides the kind of unambiguous evidence of congressional intent necessary to displace state common-law damages claims." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 531, 112 S. Ct. 2608, 2625, 120 L. Ed. 2d 407 (1992).
[7] See, e.g., Grinnell v. American Tobacco Co., 883 S.W.2d 791 (Tex.App.1994).
The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (7 U.S.C. §§ 136-136y) contains preemption language similar to the language found in the labeling act of 1969. Courts faced with the problem of interpreting and applying the preemption language found in FIFRA have, therefore, looked to Cipollone for guidance in determining which causes of actions against chemical companies are preempted and which are not. The vast majority of courts that have considered the issue post-Cipollone have held that FIFRA does not preempt design defect claims. See, e.g., Eide v. E.I. Du Pont De Nemours & Co., 542 N.W.2d 769 (S.D.1996); ISK Biotech Corp. v. Douberly, 640 So. 2d 85 (Fla.Dist. Ct.App.1994), rev. denied, 651 So. 2d 1194 (Fla. 1995); Jenkins v. Amchem Products, Inc., 256 Kan. 602, 886 P.2d 869 (1994), cert. denied, ___ U.S. ___, 116 S. Ct. 80, 133 L. Ed. 2d 38 (1995); and Warner v. American Fluoride Corp., 204 A.D.2d 1, 616 N.Y.S.2d 534 (1994).
[8] Justice Stevens's test focuses sharply on whether the duty imposed on a cigarette maker by a common law rule imposes an additional "requirement" or constitutes an additional "prohibition" as to how cigarette makers "advertise or promot[e]" their products. This approach seems to be much more consistent with the intentions behind the labeling act of 1969.
[9] See, i.e., Townsend v. General Motors Corp., 642 So. 2d 411, 415 (Ala.1994) ("Under the AEMLD, a manufacturer has the duty to design and manufacture a product that is reasonably safe for its intended purpose and use."). See also Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976); Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976).
[10] See also Jeffrey R. Stern, "Preemption Doctrine and the Failure of Textualism in Cipollone v. Liggett Group," 80 Va.L.Rev. 979 (1994).
"Although Justice Stevens failed to address explicitly the design defect claims, because he did not preempt the failure to warn claims based on negligent research and testing, it can be assumed that Justice Stevens did not [intend to] preempt ... design defect claims."
Id. at 1000. | June 7, 1996 |
d74fe5d9-e674-447c-9863-a3f062c05e3b | Ex Parte Dyas | 683 So. 2d 974 | 1950026 | Alabama | Alabama Supreme Court | 683 So. 2d 974 (1996)
Ex parte Michele Kean DYAS.
(Re Lloyd Chesney DYAS v. Michele Kean DYAS).
1950026.
Supreme Court of Alabama.
May 10, 1996.
*975 Lindsey Mussleman Davis of Holt, McKenzie, Holt & Mussleman, Florence, for Petitioner.
David Neal of Bedford & Rogers, P.C., Russellville, for Respondent.
HOOPER, Chief Justice.
This Court granted Michele Kean Dyas's petition for certiorari review of the decision of the Court of Civil Appeals in this divorce case.
The circuit court on September 19, 1994, ordered the father, Dr. Lloyd Chesney Dyas, to pay child support of $5,256 per month. Later, after Dr. Dyas had petitioned for a reduction, the trial court reduced the child support to $4,834 per month.
Dr. Dyas appealed. The Court of Civil Appeals, on May 12, 1995, affirmed the award of $4,834 per month. However, on application for rehearing, that court, on August 11, 1995, withdrew its original opinion and substituted a new opinion. That new opinion reversed the trial court's child support award, holding that that award was not "rationally relate[d] to the reasonable and necessary needs of the [children]." The Court of Civil Appeals remanded for the entry of a new child support order, strongly suggesting that, based on the evidence in the record, the monthly child support payments for the two children, then ages two and five, should be reduced to $1,542 per month. The Court of Civil Appeals also denied the wife's request for an attorney fee on appeal. See Dyas v. Dyas, 683 So. 2d 971 (Ala.Civ.App. 1995).
Dr. Dyas is an orthopedic surgeon, with offices in Russellville, Alabama. Mrs. Dyas had worked in his office as an administrative assistant, but during the four years before the divorce had not been paid a salary.
The parties initially agreed on all aspects of the divorce except for child support. The trial judge initially set support for the two children at $3,750 per month pending further orders.
At a hearing on the question of child support, Dr. Dyas presented his income tax returns for 1993. The adjusted gross income shown on his federal tax return was $384,970. The trial court set the monthly support payments at $5,256 under Rule 32, Ala.R.Jud.Admin. When the combined monthly gross income of the parties exceeds $10,000, as in this case, Rule 32(C)(1), Ala.R.Jud.Admin., states that the child support award lies within the trial court's discretion.
At the time of the trial court's hearing, Mrs. Dyas had voluntarily relocated herself and the two minor children to her father's home in Canada. She was unemployed because of her immigration status. She could not become employable, she said, until this status was "sorted out." In past years, her annual income had been between $27,000 and $30,000.
Dr. Dyas presented the testimony of a CPA who reviewed Dr. Dyas's assets and his 1993 income tax return and performed a cash flow analysis. While the opinion of the Court of Civil Appeals did not mention this fact, the CPA also took into consideration the mortgage payments, the property settlement, and the alimony. His testimony indicated that if the $5,256 monthly support payments were left in place, Dr. Dyas would have only $900 annually to pay other expenses. However, he stated that he had not prepared the 1993 income tax return and that his cash flow analysis did not take into account any of Dr. Dyas's bank accounts, savings accounts, or other property.
The record reflects that Dr. Dyas owns various properties, including a house with an estimated value of between $220,000 and $260,000, subject to a $194,000 mortgage, and *976 an office condominium for which he paid $225,000, and which is subject to a $140,000 mortgage. He also has $261,000 in a retirement fund that is subject to a penalty for early withdrawal. Dr. Dyas testified that he had to borrow money against the cash value of his life insurance policy and had to remove funds from an IRA account in order to raise the $100,000 for the first payment of the property settlement to Mrs. Dyas.
In addition to the $100,000 already received by Mrs. Dyas toward the property settlement, Dr. Dyas will pay her an additional $250,000 within the next four years, $135,000 in alimony within the next five years, and $90,000 in alimony during the subsequent five-year period, for a total of $575,000 in property settlement and alimony.
Dr. Dyas testified that the minor children had visited him on at least four occasions since July 1, 1994, and that the travel costs associated with each visitation were approximately $2,000. Dr. Dyas also testified that Mrs. Dyas had not paid any of the costs associated with the children's traveling from Canada to Alabama for those visitations.
Mrs. Dyas testified that she and the minor children are presently living with her father. She also testified that the cost of living in Canada is higher than the cost of living in Russellville, Alabama, and that Canada has a 15% sales tax on everything except food.
Mrs. Dyas testified that before the divorce, she and Dr. Dyas had discussed the recreational activities in which they wanted their children to be involved. She testified that she and Dr. Dyas had expressed an interest in having the children learn to snow ski and to ride horses. She testified that horseback riding lessons cost $25 per half hour and that if she were to buy her daughter a horse, it would cost $155 a month to board the horse.
The trial court reduced the monthly support payment to $4,834.
The question before this Court is whether the trial court's award of $4,834 per month for the support of the two children was appropriate, based on the reasonable and necessary needs of the children, as well as the ability of Dr. Dyas to provide for those needs. The Court of Civil Appeals said that the trial court had not taken into account the reasonable and necessary needs of the children, only the ability of Dr. Dyas to pay. 683 So. 2d at 973. It cited the following cases for the proposition that a child support award must be based on both of those factors: Coleman v. Coleman, 648 So. 2d 605 (Ala.Civ.App.1994); Posey v. Posey, 634 So. 2d 571 (Ala.Civ.App.1994); and St. John v. St. John, 628 So. 2d 883 (Ala.Civ.App.1993).
Dr. Dyas submits that the needs for these two children, ages two and five, are small, and that, considering that they live with their mother at their grandfather's home in Canada, the Court of Civil Appeals' suggestion in its opinion on rehearingthat the monthly support payments for the two children should be no more than $1,542was correct.
As noted in Ex parte Jackson, 567 So. 2d 867, 868 (Ala.1990), "[t]he trial Judge can consider the earning ability of both parties, their probable future prospects for earnings, the duration of the marriage, their ages, health, and station in life, and the conduct of the parties with reference to the cause of the divorce," citing Farris v. Farris, 532 So. 2d 1041 (Ala.Civ.App.1988). Did the trial court abuse its discretion in awarding $4,834 per month?
Dr. Dyas has a considerable income and a number of assets by virtue of his medical practice. His alimony payments and property settlement payments are substantial. The trial court also required that he pay the premiums on an existing $1,050,000 life insurance policy for the benefit of his children. Also, he is responsible for the expense of the children's travel between Canada and Russellville, Alabama.
The Court of Civil Appeals stated that, while it was not expressly directing the trial court "to award the maximum amount established by the child support schedule for two children, $1,542 per month, unless there is additional evidence other than that contained in the record on appeal, that amount appears to be the proper amount to award at this time." 683 So. 2d at 974. We conclude that such a reduction would be too drastic. The suggestion by the Court of Civil Appeals overlooks Dr. Dyas's own testimony that *977 $3,000 per month would be fair. It also overlooks the necessity of Mrs. Dyas's securing a residence in Canada, the future schooling of the two children, and the difference in Canadian tax law and the United States Internal Revenue Code. In the United States, alimony is taxable to the party receiving it, but child support is not taxable to the custodial parent receiving it. In Canada, both alimony and child support are taxable to the parent receiving them. Mrs. Dyas and her children grew accustomed to a certain standard of living during the Dyases' marriage.
The Court of Civil Appeals properly remanded this case to the trial court with the instruction to consider the reasonable and necessary needs of the children. It is not clear that the trial judge fully considered those needs in making its award of child support. However, the suggestion by the Court of Civil Appeals that $1,542 per month is the maximum that should be paid was improper. The amount of child support is within the discretion of the trial court, after it has considered both the reasonable and necessary needs of the children and the ability of Dr. Dyas to pay for those needs. The trial court is to set the child support payments at an appropriate amount, considering both of those factors.
The judgment of the Court of Civil Appeals remanding for the trial court to redetermine the award of child support is affirmed, but the Court of Civil Appeals is directed to instruct the trial court to ignore its suggestion that $1,542 per month should be the maximum child support award.
AFFIRMED BUT REMANDED WITH INSTRUCTIONS.
MADDOX, ALMON, SHORES, and HOUSTON, JJ., concur.
KENNEDY, J., concurs in the result. | May 10, 1996 |
5749e15e-ff8c-419a-8157-f8c0b1108e88 | Motion Industries, Inc. v. Pate | 678 So. 2d 724 | 1940250 | Alabama | Alabama Supreme Court | 678 So. 2d 724 (1996)
MOTION INDUSTRIES, INC.
v.
Robert Theron PATE.
1940250.
Supreme Court of Alabama.
March 15, 1996.
*725 Robert N. Godfrey and Suzanne J. Mulliken of Smith, Currie & Hancock, Atlanta, Georgia, for Appellant.
Anna Lee Giattina of Anna Lee Giattina, P.C., Birmingham, and Bill Thomason of Paden & Thomason, Bessemer, for Appellee.
*726 SHORES, Justice.
Motion Industries, Inc. ("Motion"), appeals a judgment based on a jury verdict in favor of Robert Theron Pate on his complaint alleging a retaliatory discharge. See § 25-5-11.1, Ala.Code 1975. The jury awarded $40,000 in compensatory damages and $210,000 in punitive damages. Motion argues for reversal on several grounds: that the trial court erred in submitting Pate's retaliatory discharge claim to the jury because, it argues, Pate did not prove that he was discharged, or, assuming that he was discharged, did not prove that his workers' compensation claim was the sole determining factor for the termination; that the jury's compensatory damages verdict was contrary to the great weight of the evidence; that the trial court erred in submitting the punitive damages claim;[1] and that evidence regarding the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), was erroneously admitted and misled the jury.
Both at the close of Pate's case and also at the close of all the evidence, Motion moved for a directed verdict. After the court entered a judgment on the jury verdict in favor of Pate, Motion moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court denied both. After carefully considering the record, this Court affirms.
Motion argues that Pate's claim of a retaliatory discharge is not supported by substantial evidence and that the trial court erred in denying its motions for a directed verdict and a judgment notwithstanding the verdict. In reviewing the denial of motions for directed verdict and J.N.O.V., this Court must apply the same standard the trial court applies to its rulings on the motions. Gold Kist, Inc. v. Griffin, 657 So. 2d 826 (Ala.1994); Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313 (Ala.1992). This Court determines whether the party with the burden of proof produced sufficient evidence to require a jury determination of the issue. Id. This Court must view the evidence in a light most favorable to the nonmoving party and must entertain such reasonable inferences as the jury would have been free to draw. Id.
Section 25-5-11.1 provides:
This section was enacted to offset the harsh effects of the employment-at-will doctrine. Morgan v. Northeast Alabama Regional Medical Ctr. 624 So. 2d 560 (Ala.1993). As remedial legislation, this section is construed liberally to effect its purposes. Twilley v. Daubert Coated Prods., Inc., 536 So. 2d 1364 (Ala.1988). For the beneficent goals of the workers' compensation chapter to be realized, the employee must be able to claim compensation for work-related injuries without being subject to reprisal. McClain v. Birmingham Coca-Cola Bottling Co., 578 So. 2d 1299 (Ala.1991).
An employee can establish a prima facie case of retaliatory discharge by proving that she or he was terminated for seeking workers' compensation benefits. That would be an impermissible reason for discharging an employee. The burden would then shift to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason; upon the employer's presentation of that evidence, the plaintiff would have to prove that the employer's reason was a pretext for an otherwise impermissible termination. Twilley v. Daubert Coated Prods., Inc., 536 So. 2d 1364 (Ala.1988). The plaintiff does not have to "prove" that the employer's stated reason is not the true reason unless the defendant's evidence would be sufficient, in the absence of more evidence from the plaintiff, to require a directed verdict. Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120, 1122 (Ala.1992).
*727 The defendant argues that, in the first place, it did not terminate Pate. It asserts that Pate remains on its payroll as an "inactive" employee on long-term disability. The evidence suggests a constructive termination, however, because, although he presented evidence that he was willing and able to work, he was not allowed to return to work following a back injury. Twilley, 536 So. 2d 1364, 1365 (Ala.1988). See also National Security Insurance Co. v. Donaldson, 664 So. 2d 871 (Ala.1995). Pate also presented substantial evidence of the elements of a retaliatory discharge. The evidence indicates that Pate was employed by Motion in June 1988 and that he worked both as an order picker and as a material handler before incurring an on-the-job back injury on July 18, 1989; that he was considered a hard worker, was well liked by his supervisors, and had demonstrated a willingness to learn as many jobs as he could in the warehouse so that he would be a more valuable employee; and that he had a good record of attendance and had used only a few days of his paid sick leave at the time of his injury.
Pate had worked at Motion's warehouse over one year when he was injured after lifting in succession two boxes, each weighing 175 pounds. He testified that he thought he had strained his back, but he did not report the problem at the time because, he said, he did not want to take off work and he thought the pain would go away. He did not recover as he had expected, so he reported the injury after his off day; Motion sent him to Dr. Richard Doering. Pate made a claim for workers' compensation benefits and received them until April 1990.
Dr. Doering, the company doctor, made an initial diagnosis of lumbar strain. This diagnosis was modified after Pate was given an epidural block at St. Vincent's Hospital in Birmingham, under the care of physicians other than Dr. Doering. Dr. Doering stated in his deposition that he believed Pate had an alcohol problem. His final diagnosis included peripheral neuropathy, which involves nerve damage in the extremities that can occur in persons who have abused alcohol. He based this conclusion on treatment at St. Vincent's Hospital administered by other doctors for Pate. As part of his back injury treatment, Pate was given an epidural block at St. Vincent's. Dr. Doering's testimony is conflicting as to the sequence of events, but apparently Pate suffered a seizure after, rather than before, the epidural block was administered. Pate was referred to an internist, who, according to Dr. Doering, determined that this was an alcohol withdrawal seizure. Dr. Doering stated that Pate had had no prior history of seizures. Dr. Doering then stated that radicular symptoms, which were not present in Pate according to Dr. Doering's initial diagnosis, were "felt to be secondary to alcohol." Dr. Doering admitted, when questioned by Pate's counsel, that he had no special training on the effects alcoholism would have on someone with Pate's injury and that he had done no tests himself on Pate for determining the validity of his conclusion that some of Pate's symptoms were related to alcohol abuse.
Pate's testimony was that the only injury he had ever suffered was an injury to his knee while serving with the military forces in Vietnam. He testified that he had had no problems with his back before the injury at Motion in July 1989. Pate stated that in the past he had drunk "too much liquor" but that he was currently sober. It was undisputed that drinking had never interfered with Pate's work at Motion. This conformed with evaluations by Motion, which were consistently positive. His first employee evaluation indicated "excellent" attendance and attitude, and all other categories were "satisfactory" or better. The evaluator noted, "Theron shows a desire to learn as much as he can and is a consistent worker." The record also shows that a second evaluation, occurring about one month before his injury, was positive in almost every category. The only less-than-satisfactory rating was a "fair" on productivity: "Theron needs to improve his line average." R.T. 44. Pate explained that at the time of that evaluation he had recently moved from the job of material handler to the job of order picker and was still adjusting to the new assignment.
Dr. Doering did not certify Pate to return to work until April 1990, because of the seriousness of Pate's injury, although Pate *728 had continually urged Dr. Doering to allow him to return to work. The doctor recommended in his release letter that Pate refrain from any activity that required much driving, that he refrain from "prolonged standing," and that he refrain from lifting more than 15 to 20 pounds on a repetitive basis. He stated at his deposition (entered into evidence at trial) that those numbers were "kind of arbitrary," because of the difficulty of quantifying lifting restrictions. He also recommended that Pate be given a job in which he could move around a great deal of the time. Based on information indicating that Pate in his former capacity at Motion was required to lift 175 pounds on a regular basis, Dr. Doering would not certify Pate to return to his previous position.
Pate testified that he went straight from the doctor's office to Motion to resume work. He was told that he could not return to work without first talking to Joe Carmichael, warehouse distribution center manager, and that Carmichael was unavailable for a week. In the meantime, Motion received notice from Dr. Doering of Pate's release and his restrictions. When Pate was able to speak with Carmichael the following week, Pate said, Carmichael informed him that he could not resume work at Motion. According to Pate, Carmichael had also informed him that he "had to be 100 percent and be released from the doctor" before he could return to work.
Carmichael maintained during his deposition, entered into evidence at trial, that, within 10 days of Pate's release by Dr. Doering, Pate had confided in Carmichael that Pate could not lift his baby and would never be able to come back to work:
At trial, Carmichael admitted that he had not joined Pate on a fishing trip. Carmichael at trial maintained that Pate had at one time confided that he could not pick up his baby, but he said he could not remember when he and Pate had had that conversation.
Pate testified at trial that Carmichael had arranged a fishing trip that Pate took, but that the trip was for any employees who wanted to go and could pay their expenses; also, he said, he and Carmichael had not been on a fishing trip together. Contrary to Carmichael's characterization of their relationship, Pate stated that he and Carmichael were not social friends or "buddies." Pate also testified that so far as he knew he had not suffered any injury to his back before the one that occurred at Motion and that, therefore, he had not characterized his back injury at Motion as an aggravation of an old injury and had never mentioned a previous back injury to Carmichael. Pate testified further that at one time he could not pick up his baby, but that he had recovered well beyond that point by April 1990, when he was released from Dr. Doering's care. Pate also stated that he had never told Carmichael that he would not be able to return to work. In fact, Pate stated that in each conversation with Carmichael Pate was discussing returning to work. Carmichael agreed that during Pate's recovery, when he brought slips from Dr. Doering to Motion regarding his improvement, Pate expressed an eagerness to return to work.
A personnel department manager, Patty Frye, testified that, upon receiving the letter from the company doctor concerning Pate's restrictions and the suggestion that Pate receive vocational rehabilitation, she discussed the release letter from Dr. Doering with one of Motion's attorneys. She wrote this note pursuant to the conversation with the attorney:
Supervisor Joe Carmichael then compiled a list of positions and the duties of each, including in this document reasons why Pate could not perform those jobs. However, it was undisputed, both during depositions and at trial, that Pate was trainable for a position in inventory control,[2] where lifting is not a primary function. The evidence also suggested that he could have performed the duties of a salesperson. Nonetheless, Pate was not permitted to return to work at Motion. Joe Carmichael sent Pate a letter by registered mail on April 25, 1990, stating that no work was available within Pate's restrictions but also stating that if Pate's physical condition changed then Motion would "be glad to discuss any employment opportunities at that *730 time." Pate testified that although as of April 1990 he could not lift 175 pounds, he knew the warehouse operation and knew that Motion could have put him back to work in a meaningful way without his having to lift over 25 to 30 pounds[3] repetitively.
Carmichael stated at his deposition that everyone at the warehouse was required to do some lifting. When asked the average weight that everybody in the warehouse lifts repetitively all day, Carmichael estimated an average of from 10 to 30 pounds. This estimate of repetitive lifting weight is not greatly different from Dr. Doering's recommendation.
Regarding the inventory control job, Carmichael agreed that Pate was trainable for it, but he insisted that the job requirements were outside the limitations on Pate as prescribed by the company doctor. On his handwritten list, Carmichael had noted: "Climbing up and down stairs all day. No product knowledge." He stated that he telephoned the doctor to see if the restrictions were permanent and if they were something Motion "could work with." He asserted that when he was compiling this list Dr. Doering had agreed with him that Pate would never be able to lift more than 15 or 20 pounds. Yet, this directly contradicts the recommendation that Pate not lift more than 20 pounds on a repetitive basis. In fact, Dr. Doering knew that a test had indicated Pate would be able to lift up to 50 pounds on an occasional basis, and this appears to be within the requirements of the inventory control job.
Pate's counsel questioned Carmichael about the inconsistencies:
Pate attempted to return to work again in the spring of 1992. During this period he had been doing yard work to help his wife support them and their child. He explained to the receptionist that he had worked at Motion previously. He was told that Motion was not taking applications, and he left a message for Carmichael to call him. Carmichael never telephoned him, despite the fact that Motion had stated in its letter of April 25, 1990, that Pate should contact Motion if his physical condition changed.
"An employer could almost always say either `we hired someone to take your place,' or `we no longer have enough business to continue your employment.' Thus, we think a jury question is presented as to whether [the employer's] asserted reason is a legitimate one or only a pretext." Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120, 1123 (Ala.1992). The circumstances surrounding Pate's attempt to return to work allow the inference that the asserted reason was pretextual. This is particularly so given the inconsistencies between Carmichael's deposition and his testimony at trial. The credibility issues present questions for the jury, and the "functional capacities form," as well as Dr. Doering's analysis, indicates that Pate was able to work in some capacity at Motion. This evidence was sufficient to warrant submitting Pate's claim for the jury's determination. The trial court properly denied the defendant's motions for a directed verdict and a J.N.O.V.
Motion argues that the compensatory damages award is contrary to the great weight of the evidence. "No ground for reversal of a judgment is more carefully scrutinized or rigidly limited than the ground that the verdict of the jury was against the great weight of the evidence." Christiansen v. Hall, 567 So. 2d 1338 (Ala.1990). This Court begins with the presumption that a judgment based on a jury verdict is correct. King Motor Co. v. Wilson, 612 So. 2d 1153 (Ala.1992). That presumption is strengthened by the trial court's denial of a motion for new trial. Gold Kist, Inc. v. Griffin, 657 So. 2d 826 (Ala.1994). A judgment based upon a jury verdict and sustained by the denial of a post-judgment motion for a new trial will not be reversed unless it is plainly and palpably wrong and unjust. Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313, 320 *733 (Ala.1992); Ashbee v. Brock, 510 So. 2d 214 (Ala.1987).
Pate is entitled to recover for lost wages and mental anguish to the extent he has not been compensated under the Workers' Compensation Act. Mokrzycki at 321. There exists "no fixed standard for the jury's determination of the amount of compensatory damages to award for mental anguish." Alabama Power Co. v. Harmon, 483 So. 2d 386, 389 (Ala.1986). Pate presented evidence both as to his lost wages and as to mental anguish.
Pate claimed lost earnings from April 1990, when he was constructively terminated and from which date he received no further workers' compensation benefits, through December 1993. Since then, he has found employment as a taxicab driver. The parties agree that Pate's income for this period would have been something between $39,000 and $49,000. Motion, however, argues that Pate suffered no real loss because in 1991 he received a lump sum disability settlement of $11,316 and on his workers' compensation claim against Motion received a settlement of $17,000.00. Additionally, Pate earned between $5,000 and $7,000 during the period at issue doing yard work. Even if these amounts are offset against the claimed loss, the evidence indicates that Pate did suffer some loss. We note that the jury award of $40,000 reflected compensation for both lost wages and mental anguish.
Motion argues that Pate presented no evidence that he suffered mental anguish because of the claimed retaliatory discharge; that argument is without merit. The evidence showed that Pate had worked from the time he was 12 years old, first delivering newspapers and then doing yard work. At age 14, he worked full-time while attending school. At 16, he began working in a machine shop. He worked later in oil fields, putting up fences and laying and inspecting pipe. He was later drafted into the military services and served in Vietnam, where he suffered an injury to his knee. After being discharged, he returned home and attended a technical school; after that, he was certified as a barber and hair stylist. He worked in a barber shop for 15 years, until increased competition led him to seek other employment. He was employed as a foreman for a general contractor for two years. When the availability of work decreased, he worked at several temporary jobs; one of these temporary jobs led to full-time employment at Motion Industries.
Pate testified regarding his feelings about being terminated: "It's just bad to know that you don't have anything coming in and it's not your fault. There is nothing you can do about it. It could make somebody do something that they don't want to do." He stated that working "feels good, from the exercise," and he said, speaking in terms of how he values himself as a person, "As long as I accomplish something and do good at it, that's what counts." He said he had always worked, had always wanted to work, and had wanted to return to work at Motion Industries.
The evidence indicates that Pate has performed various jobs that the company doctor had concluded he would not be able to perform. The doctor recommended that he not perform activities that required prolonged standing or sitting or driving, without being relieved occasionally, because of the pain. Pate performed yard work after Motion refused to put him back to work, despite the fact that yard work involves prolonged standing or sitting and bending. At the time of the trial, Pate was driving a taxi to earn a living. This evidence shows that working was important enough to Pate that in order to work he would endure pain and risk aggravation of his injury. Furthermore, Pate attempted to return to work at Motion as late as 1992; this fact supports his claim that he wanted to work at Motion Industries. The evidence supported an award of damages for mental anguish; accordingly, the compensatory damages award is not contrary to the great weight of the evidence.
The jury awarded Pate $210,000 in punitive damages. Motion argues that Pate *734 did not present sufficient evidence for his punitive damages claim to be submitted to the jury. Under § 6-11-20, Ala.Code 1975, Pate must present clear and convincing evidence that the defendant "consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff." "Clear and convincing evidence" is evidence that, "when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion." See § 6-11-20(4). Further, "[p]roof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt." Id. Again, this Court observes that there is a strong presumption in favor of jury verdicts and that this Court will not disturb a verdict on the ground of insufficiency of the evidence unless it appears that the verdict was plainly and palpably wrong and unjust. Gold Kist, Inc. v. Griffin, 657 So. 2d 826 (Ala. 1994). This Court holds that Pate's evidence, weighed against the evidence in opposition, could produce in the minds of jurors a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.
Pate showed that before his injury he was a well-liked employee who performed his job satisfactorily. Motion admitted that employees who had been returned to work at Motion after on-the-job injuries were employees with only temporary restrictions. This was consistent with Dr. Doering's testimony that Motion had a policy of not returning employees to work unless they were "100 percent." Motion admitted that during Pate's recovery its warehouse had been modified in a way that complicated the return of an employee with a back injury like Pate's.
Although before his injury any problem Pate may have had with alcohol consumption was not an issue for Motion, Pate's initial diagnosis of lumbar strain was changed sometime later to include alcohol-related symptoms. This change in diagnosis by Dr. Doering was based on one incident at St. Vincent's Hospital while Pate was under the care of another physician. Pate's entire personnel file was entered into evidence, and nothing in the file indicated Pate had an alcohol problem or that he had been disciplined or warned in any way. Yet, the note written by Patty Frye, the personnel manager, regarding whether to return Pate to work, mentioned "the alcohol problem." Motion based its conclusion that Pate had an alcohol problem on the diagnosis by Doering, who admitted at trial a lack of expertise in the area of alcohol-related medical problems and whose letter stated that he "believe[d]" the peripheral neuropathy was of "probable alcoholic origin." The fact that an "alcohol problem" Pate might have was documented for the first time in his personnel file only after Motion had determined that Pate's restrictions would be permanent suggests a motivation on the part of Motion to avoid returning Pate to work. This is supported by Frye's note, written pursuant to a conversation with Motion's attorney, which stated that "the alcohol problem should not be considered" in the determination of Pate's ability to return to Motion.
More significantly, Carmichael's credibility was suspect because of contradictions between his deposition testimony and his trial testimony. He admitted at trial that his deposition characterization of his relationship with Pate was not accurate. This put into question whether Pate had confided anything in Carmichael and indicated that Pate's version of events was more trustworthy. Further, Carmichael's refusal to recognize at trial, despite extensive cross-examination, the significance of the phrase "on a repetitive basis" regarding Pate's lifting restrictions indicates that Pate's actual capabilities were ignored at the time Motion determined whether it could return Pate to work. Additionally, the testimony of Motion's personnel manager, especially when considered in light of Carmichael's questionable credibility, indicated that she and Carmichael were predisposed to find that Pate could not perform any of the jobs at Motion.
Motion also argues that the ADA was mentioned erroneously and that the *735 mention of it misled the jury. The ADA was not in effect at the time of the actions giving rise to this case, but Motion's argument is without merit. The ADA was mentioned only once in the jury's presence during the trial, and then only in a limited fashion. During cross-examination of Joe Carmichael, the ADA was mentioned as part of the inquiry by Pate's counsel concerning modifications to Motion's warehouse that were made after Pate's injury in July 1989 but before he was released to return to work in April 1990:
This was the extent of the questioning on the Act, and this excerpt from the record makes it apparent how limited that questioning was.
Motion points out that the ADA was discussed at another time during the trial. That discussion occurred when the jury was not even present. Motion says the ADA was mentioned on other occasions and that those references to it misled the jury; however, the instances Motion refers to were simply moments when Pate's counsel used the verb "accommodate" or some form of the verb "to train" in direct or cross-examination. Motion did not object to the use of those words. If any of those statements could have misled the jury, then the trial court's charge, which was clear as to each party's burden and as to Motion's duty to Pate, cured the error.
Accordingly, the trial court properly ruled on the motions for directed verdict, J.N.O.V., and new trial. Its judgment is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, KENNEDY, and BUTTS, JJ., concur.
HOUSTON, J., concurs in the result.
[1] Motion also argues that the punitive damages award was excessive, but this issue is raised for the first time on appeal; therefore, we do not consider that argument.
[2] When questioned by Motion's counsel, Carmichael explained at trial the duties of inventory control personnel:
"They take any document that comes out where somebody says `I could not find this product.' And they try to look at the warehouse because most of the time the people in inventory control are some of our senior people and they know more about where the product would be stored than somebody coming in that's been there only six months.
"They try to find it. If they find it they take this box and try to bring it back to the order that we shorted it on it.
"They do shelf counts all day long. If we receive something and the paperwork shows we received 25 and the customer or the vendor that shipped it to us said they sent 30 or they said they sent 40 or whatever, we have to do a shelf count on these and in some cases pull them off the shelf because we had been sent the wrong product or too many or not enough. And they get the shelf counts back inside for the people to receive it on.
"They also count in some parts of the day and they have to go up and down the shelf to be able to count the top shelf and the bottom shelf in the entire area.
"Their office is on the second floor and they are up and down the steps 30 to 40 times a day [it was established that `a day' meant an eight-hour shift]."
[3] A "functional capacities form," completed by a second doctor on March 12, 1990, and copied to Dr. Doering, suggests that Pate could lift up to 2 pounds frequently and up to 50 pounds occasionally. | March 15, 1996 |
d08d1c5e-2a6a-4f0a-a2a3-7805ce5b4af0 | Ex Parte Southtrust Bank of Alabama | 679 So. 2d 645 | 1950236 | Alabama | Alabama Supreme Court | 679 So. 2d 645 (1996)
Ex parte SOUTHTRUST BANK OF ALABAMA, N.A., as co-trustee of Paul M. Penney testamentary trust.
(Re Hal G. LAND, Jr., as co-trustee of the Paul M. Penney testamentary trust v. SOUTHTRUST BANK OF ALABAMA, N.A., as co-trustee of the Paul M. Penney testamentary trust.).
1950236.
Supreme Court of Alabama.
April 19, 1996.
Rehearing Denied August 30, 1996.
*646 Henry Frohsin and Michael R. Silberman of Berkowitz, Lefkovits, Isom & Kushner, Birmingham, for Petitioner.
William Kent Upshaw and Kelli Hogue-Mauro of Holt, Cooper & Upshaw, Birmingham, for Respondent.
MADDOX, Justice.
The issue presented by this petition for the writ of mandamus is whether the trial judge properly denied the defendant's motion to strike the plaintiff's jury demand in a case in which a co-trustee of a testamentary trust sued the other co-trustee alleging breach of fiduciary duty and negligence in regard to its duties in the administration of the trust and seeking recovery of all losses attributable to the breach of fiduciary duty. Stated differently, the question is whether the plaintiff's claims are within the exclusive jurisdiction of equity; we conclude that they are and we grant the writ.
Most of the controlling facts are not disputed. At his death in 1971, Paul Penney established a testamentary trust for the benefit of his widow Ethel Penney. The trust instrument named both Ethel Penney and First National Bank of Birmingham as co-trustees. The petitioner, SouthTrust Bank of Alabama, N.A. ("SouthTrust"), is a successor co-trustee. The trust property consisted principally of real estate that produced income through various leases and coal mining operations. The trust instrument provides that income produced by the trust is to be paid to Ethel Penney."[1] When Ethel Penney died in August 1991, her brother, Hal G. Land, Jr., succeeded her as co-trustee.
Shortly thereafter, Land discovered that Ronald W. Payne, who was acting as a coal agent under an arrangement with SouthTrust, was embezzling a portion of the coal royalties he collected and was concealing his thefts by submitting falsified coal tonnage reports. Land maintains that South-Trust has refused to compensate him fully for the monies embezzled by Payne, and, as a result, Land sued SouthTrust, alleging breach of fiduciary duty by SouthTrust, as a co-trustee, in the administration of the trust of Paul M. Penney.
The gravamen of the complaint, filed by successor co-trustee, Hal G. Land, Jr., is that SouthTrust negligently failed to exercise supervision and control over Payne, who, under an agreement with SouthTrust, was to collect coal royalties and remit the same to South-Trust, less a commission;[2] Payne pleaded *647 guilty to embezzling over $300,000 of the funds.
In his complaint Land alleged that South-Trust was negligent in regard to its duties in the administration of the Paul M. Penney Trust in the following respects:
Land contends that Payne acted as South-Trust's employee, but SouthTrust disputes this assertion. SouthTrust claims that Payne was not its employee, but that it entered into a contract with Payne under which Payne agreed to collect coal royalties on behalf of the Trust in exchange for the Trust's payment of a commission based upon the amount of royalties Payne collected.
Land demanded a trial by jury on all issues raised in the complaint. SouthTrust moved to strike Land's jury demand, and when the trial judge denied its motion South-Trust filed this petition for a writ of mandamus.
A mandamus petition is a proper method for reviewing the issue here presented.[3] SouthTrust maintains that Land's claim alleging a breach of fiduciary duty concerns the administration of a trust by a trustee, and that Land is not entitled to a jury trial because, it says, this action is exclusively equitable in nature and the right to a jury trial does not extend to equitable claims. We agree. This Court has previously considered a similar issue. In First Alabama Bank of Huntsville, N.A. v. Spragins, 475 So. 2d 512 (Ala.1985), beneficiaries of a trust sued a bank, as trustee, claiming that the bank had breached its fiduciary duty as trustee. The plaintiffs demanded a jury trial. In that case, just as in this case, the trial judge denied the trustee bank's motion to strike the jury demand. This Court wrote:
475 So. 2d at 513. In Spragins, the Court discussed how "the modern trust is an outgrowth of the ancient cestui que use," and said:
475 So. 2d at 513-14.
In Spragins this Court followed the holding in First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415 (Ala.1982), cert. denied, 461 U.S. 938, 103 S. Ct. 2109, 77 L. Ed. 2d 313 (1983)that remedies to enforce rights arising under a trust have been relegated to the exclusive jurisdiction of equity:
425 So. 2d at 423 (citations omitted).
This Court, in Spragins, quoted Restatement (Second) of Trusts § 198 (1959), which states the two exceptions to exclusive equitable jurisdiction over a beneficiary's remedies against a trustee:
See 475 So. 2d at 514. Writing about the two exceptions, neither of which the Court found applicable in Spragins, this Court said: "The courts of Alabama have consistently recognized and applied this common law development." 475 So. 2d at 514. This Court also addressed the possibility of a third exception: "a claim for money damages only, based on an alleged breach of fiduciary duty," 475 So. 2d at 514, but rejected that third exception, deciding instead "to adhere to precedent and leave all matters pertaining to trusts, other than the two recognized exceptions, within equity's exclusive jurisdiction." Spragins, 475 So. 2d at 514.
Land contends that the trial court properly refused to strike his jury demand, because, he argues, the facts of this case come within the first exception, as an action to recoup money that was due to be paid over immediately and unconditionally. Land candidly admits that "[f]ollowing a diligent search of Alabama case law, [he] has concluded that there are no Alabama cases which address the application of the exceptions as set out in the Restatement (Second) of Trusts § 198 (1959)," but he does cite Jefferson National Bank v. Central National Bank, 700 F.2d 1143, 1148 (7th Cir.1983), wherein the Court of Appeals for the Seventh Circuit upheld the trial court's order granting the plaintiff a trial by jury.
We believe Alabama law to be clear: that the plaintiff's claims here are exclusively within the realm of equity jurisdiction. This conclusion is especially compelling in this case, in which the beneficiary of the trust, until her death, was also a co-trustee. We have diligently searched for cases that would make an exception in a case where, as in this case, the beneficiary, to whom payments were to be made, was also a co-trustee, but we have found none.
We realize, of course, that Land's complaint is based upon SouthTrust's alleged negligence in failing to exercise supervision and control over Payne or to employ measures sufficient to detect embezzlement of the royalties. However, we find no significant difference between the facts alleged in this case and those alleged in Spragins, where this Court refused to apply the Restatement exception.
Based on the foregoing, we hold that the plaintiff, as co-trustee, is not entitled to a trial by jury; therefore, SouthTrust is entitled to the writ of mandamus.
WRIT GRANTED.
HOUSTON and BUTTS, JJ., concur.
HOOPER, C.J., concurs specially.
COOK, J., concurs in the result.
ALMON and SHORES, JJ., dissent.
HOOPER, Chief Justice (concurring specially).
I write to note that, according to the following authority, it would be permissible to try the case with the aid of an advisory jury. Conner v. City of Dothan, 500 So. 2d 1065 (Ala.1986); J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala.1981); Anderson v. Anderson, 399 So. 2d 831 (Ala. 1981); Hosey v. Robinson, 293 Ala. 194, 301 So. 2d 69 (1974); Wilson v. City of Aliceville, 779 F.2d 631 (11th Cir.1986); Dybczak v. Tuskegee Institute, 737 F.2d 1524 (11th Cir. 1984), cert. denied, 469 U.S. 1211, 105 S. Ct. 1180, 84 L. Ed. 2d 328 (1985).
*650 SHORES, Justice (dissenting).
I dissent. The only issue raised by this petition for the writ of mandamus is whether the trial court erred as a matter of law in denying SouthTrust's motion to strike a demand for a jury trial.
The co-trustee and beneficiary of the Paul M. Penney testamentary trust, Hal G. Land, Jr., sued SouthTrust, seeking the benefits of a testamentary trust. The trust instrument provided that SouthTrust was to pay all income produced by the trust to the beneficiary, Ethel L. Penney, "in not less frequent than quarter annual installments, the entire net income from such Trust Share so long as she, the said Ethel L. Penney shall live." SouthTrust did not pay all the income to the beneficiary (now Hal G. Land). The funds in dispute represent the income of the Paul M. Penney testamentary trust for the years 1987-92.
The bank contends that this action is one based on a breach of a fiduciary duty concerning the administration of a trust and that it is exclusively equitable in nature. However, as the majority points out, in First Alabama Bank of Huntsville, N.A. v. Spragins, 475 So. 2d 512 (Ala.1985), this Court recognized the exceptions in Restatement (Second) of Trusts § 198 (1959). Section 198 expressly excepts certain cases from exclusive equitable jurisdiction and thus entitles beneficiaries to a jury trial in those cases in which the trustee is under a duty to pay money immediately and unconditionally to the beneficiary. Section 198(1) provides: "If the trustee is under a duty to pay money immediately and unconditionally to the beneficiary the beneficiary can maintain an action at law against the trustee to enforce payment."
The trust instrument here requires the bank as trustee to pay all income to the beneficiary unconditionally and not less frequently than quarterly. The circumstances of this case fall squarely within the recognized exception embraced in § 198(1) of Restatement (Second) of Trusts.
In Spragins this Court noted that the "at law" exception was applied in Ex parte Davis, 465 So. 2d 392 (Ala.1985). In Ex parte Davis, this Court said that plaintiffs are entitled to a jury trial on counts that are common law counts for legal remedies. 465 So. 2d at 394. In that case the plaintiffs' complaint contained counts in assumpsit and conversion, upon which they would be entitled to a trial by jury under Ala. Const.1901, Art. 1, § 11. The judge struck the plaintiffs' demand for a jury trial. This Court held that there was no right to a jury trial on the issue of the existence or nonexistence of a trust, but that the counts in assumpsit and conversion, seeking legal remedies, should be submitted to a jury. Ex parte Davis follows the logic adopted by the Alabama Rules of Civil Procedure, effective July 3, 1973, which provide for notice pleading and abolish the harsh technicalities of the old forms of pleading. "The new rules are to be construed liberally to effect the purpose of the rules, and, under the rule of liberal construction, every reasonable intendment and presumption must be made in favor of the pleader. B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979)." Johnson v. City of Mobile, 475 So. 2d 517, 518-19 (Ala.1985). "Any legal issue for which a jury trial is timely and properly demanded should be submitted to the jury. Finance, Investment & Rediscount Co. v. Wells, 409 So. 2d 1341 (Ala.1981); Crommelin v. Fain, 403 So. 2d 177 (Ala.1981); Rules 38 and 39, Alabama Rules of Civil Procedure. See also, Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L. Ed. 2d 44 (1962); Beacon Theatres v. Westover, 359 U.S. 500, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959)." Ex parte Davis, supra, at 394.
The Seventh Circuit Court of Appeals addressed the question whether a claim arising out of a trustee's administration of a trust was properly tried to a jury, in Jefferson National Bank v. Central National Bank, 700 F.2d 1143, 1148 (7th Cir.1983). In that case the United States district court had granted a request for a jury demand in an action based on a breach of fiduciary duty that had occurred during the life of the beneficiary. The Court of Appeals upheld the trial court's decision on the grounds that, because the money was due immediately and unconditionally, an action at law was appropriate. The Seventh Circuit, while noting that actions involving the administration of trusts have been almost exclusively within *651 the jurisdiction of equity, recognized the exceptions to that general rule set forth in Restatement (Second) of Trusts § 198 (1959). The Court quoted the district court's memorandum opinion denying the defendant bank's motion to strike the plaintiff's jury demand:
700 F.2d at 1150. The district court cited Dixon v. Northwestern National Bank, 297 F. Supp. 485 (D.Minn.1969). In the case before us, the monies were due to be paid out "in not less frequent than quarter annual installments"; the time for payment has long since expired. Thus, the beneficiary's right to the monies has vested.
In this case it is apparent from Land's allegations that under this trust the trustee is under a duty to pay to the beneficiary income earned by this trust, immediately and unconditionally. That is what the trust instrument requires. The trust instrument is clear, and nothing requires a construction of the trust instrument. The majority opinion, while admitting that this Court in Spragins recognized the two exceptions of the Restatement, rejects the contention that the circumstances of this case place it clearly within the first exception, stating that Spragins did not adopt a third exception for "a claim for money damages only, based on an alleged breach of fiduciary duty." 475 So. 2d at 514. I believe the facts of this case place it squarely within the first exception recognized in Spragins.
The majority states that it realizes that the plaintiff has alleged negligence on the part of the bank in the handling of its fiduciary duty. The plaintiff may well be able to prove that allegation. That should not defeat his right to a jury trial.
For the reasons stated above, I would hold that the trial court properly refused to strike the plaintiff's jury demand. At the very least, a trial judge has the discretion to permit a jury to hear a case, even if it is with the intention of treating the jury's verdict as advisory. See First Alabama Bank v. Spragins, supra. The petition for the writ of mandamus is due to be denied.
ALMON, J., concurs.
[1] The trust instrument provides, in part:
"The Trustees shall pay to my wife, Ethel L. Penney, in not less frequent than quarter annual installments, the entire net income from such Trust Share so long as she, the said Ethel L. Penney shall live."
[2] Based on the evidence before us, it appears that SouthTrust employed one Haddon Gann as its coal agent to collect the coal royalties from various operators who were mining coal on the trust property, but Gann died in 1983. South-Trust then entered into an arrangement with Gann's son-in-law, Ronald Payne, under which Payne agreed to collect coal royalties, deposit them into his own bank account, and remit the balance to SouthTrust, less his commission. SouthTrust would then make a distribution to the trust. Payne did not remit the moneys as agreed, and on January 28, 1994, Payne pleaded guilty to embezzling $313,883, while acting as a coal agent.
[3] The standard for considering whether a writ of mandamus should be issued has been stated by this Court in Ex parte Edgar, 543 So. 2d 682 (Ala.1989):
"[M]andamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."
543 So. 2d at 684. In addition, this Court has held that the writ of mandamus will issue to compel a trial court to grant a trial by jury. Ex parte Holt, 599 So. 2d 12 (Ala.1992):
"Although mandamus will lie to compel a trial court to grant a trial by jury, Ex parte Rush, 419 So. 2d 1388, 1391 (Ala.1982), the petitioner first must show that he has a clear legal right to a trial by jury and a violation of that right by the trial court. Ex parte Reynolds, 447 So. 2d 701, 703 (Ala.1984)."
Id. at 13. Here, the petitioner SouthTrust asks this Court to review the trial court's order denying its motion to strike the plaintiff's jury demand. | April 19, 1996 |
ce28a55d-46c1-4ac3-a38a-3459edf4ea7f | Ex Parte Bryowsky | 676 So. 2d 1322 | 1950131 | Alabama | Alabama Supreme Court | 676 So. 2d 1322 (1996)
Ex parte Angela Dawn Gann BRYOWSKY.
(In re Allan Dyoll GANN v. Angela Dawn Gann BRYOWSKY).
1950131.
Supreme Court of Alabama.
March 8, 1996.
*1323 Jerry F. Guyton of Fite, Davis, Atkinson, Guyton and Bentley, P.C., Hamilton, for Petitioner.
M. Lionel Leathers of Hollis, Leathers & Leathers, P.C., Winfield, for Respondent.
HOUSTON, Justice.
Angela Dawn Gann Bryowsky and Allan Dyoll Gann were divorced in January 1992. The trial court adopted the parties' divorce agreement as part of its judgment of divorce. That agreement granted to the parties the joint legal custody of their minor child; however, physical custody of the child was vested in the mother.[1] Following the divorce, the *1324 parties entered into an informal arrangement whereby the minor child actually spent about half his time with his mother and half with his father. Because of the mother's work schedule, this arrangement benefited the parties and the child. In December 1993, after learning that the mother was planning to remarry and move with the child to Mississippi, the father petitioned to have the divorce judgment modified so as to allow him to have physical custody of the child. After an ore tenus hearing wherein numerous witnesses testified, including the child, both parties, character witnesses, relatives, and professionals who had taught, tested, and worked with the child, the trial court entered a judgment for the mother. The father appealed to the Court of Civil Appeals, which reversed the judgment and remanded the case with instructions for the trial court to enter a judgment awarding custody to the father. See Gann v. Bryowsky, 676 So. 2d 1317 (Ala.Civ.App.1995), for a detailed statement of the facts surrounding this case. We granted the mother's petition for certiorari review pursuant to Rule 39, Ala.R.App.P. We reverse and remand.
When evidence in a child custody case has been presented ore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determinationit hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So. 2d 46, 47 (Ala.1994), wherein this Court, quoting Phillips v. Phillips, 622 So. 2d 410, 412 (Ala.Civ.App.1993), set out the well-established rule:
It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. See the cases collected at 3 Ala. Digest 2d Appeal & Error § 846(5) (1993).
There are two different standards for reviewing custody arrangements. If custody has not previously been determined, then the "best interest of the child" standard is appropriate. Ex parte Couch, 521 So. 2d 987 (Ala. 1988). However, if a judgment has granted custody to one parent, or if one parent has given up legal custody, then custody will be changed only if the change would "materially promote" the child's welfare. Ex parte McLendon, 455 So. 2d 863 (Ala.1984). In the present case, the trial court did not state which of these standards it found to be applicable and it made no specific findings that would support its judgment. Emphasizing the fact that the parties had worked out an informal arrangement to share child-rearing responsibilities, and relying on Ex parte Couch, supra, the Court of Civil Appeals held that the "best interest of the child" standard was applicable. The court then reviewed the judgment, using both of the standards, ultimately concluding that the trial court's refusal to award custody to the father was clearly erroneous.[2]
The mother contends that the reliance by the Court of Civil Appeals on Ex parte Couch in support of its application of the "best interest of the child" standard was misplaced. She argues that the more stringent McLendon standard should have been applied because she had previously been granted physical *1325 custody of the child in the parties' divorce judgment. She also contends that the record does not support the conclusion reached by the Court of Civil Appeals that the trial court's judgment is clearly erroneous. We agree.
The Court of Civil Appeals correctly noted that the McLendon standard does not always apply in joint custody situations. However, Ex parte Couch involved joint legal custody and shared physical custody of the children where no judicial determination had been made preferring either parent. Therefore, when the father in Ex parte Couch sought custody, we applied the "best interest of the child" standard because under the particular facts of that case both parents were on equal ground in attempting to gain custody of the children. In the present case, the parties had joint legal custody, but a previous judicial determination had granted physical custody to the mother. This distinguishes this case from Ex parte Couch. See Blackmon v. Scott, 622 So. 2d 393 (Ala.Civ. App.1993), for a case substantially similar to this one, where the Court of Civil Appeals applied the McLendon standard. We further note that it makes no difference that the parties here had worked out an informal arrangement to care for the child. Although the nature of that arrangement and its impact on the child would be factors to be considered in determining whether a transfer of custody from the mother to the father would materially promote the child's welfare, the arrangement itself did not constitute a waiver on the mother's part of her right to preference under the divorce judgment. Ex parte Couch. Therefore, under the facts of this case, the McLendon standard is applicable, and we assume that the trial court found that awarding custody to the father would not materially promote the child's welfare, unless such a finding would be clearly erroneous.[3]
As previously noted, the trial court's judgment followed extensive testimony, much of which was disputed, concerning the respective lifestyles of the mother and the father; their respective abilities to provide for the child's emotional, social, moral, material, and educational needs; and the family support that was available to the parents in caring for the child. The Court of Civil Appeals noted that "[t]he record reveals that both parents love [the child] very much and that both parents can provide for his material needs." 676 So. 2d at 1319. However, it is apparent from a comparison of the opinion of the Court of Civil Appeals to the record that that court, in support of its decision to reverse, proceeded to set out only the evidence that reflected most favorably on the father. The Court of Civil Appeals did not discuss the evidence indicating that the father smoked marijuana; that he had been known to abuse alcohol and that alcohol abuse was one of the factors that had led to the parties' divorce; that the father had refused to cooperate in the mother's efforts to treat the child's attention deficit disorder; that the father on occasion had acted irresponsibly while the child was in his care (e.g., there was evidence that the father had on many occasions arrived to pick the child up from the grandparents' house smelling of alcohol); that the child had expressed concern that his father preferred to party with friends rather than spend time with him; that the father's apparent hatred for the mother was affecting the child (e.g., there was evidence that the child had expressed feelings of guilt concerning his father's hatred for his mother); and that the father had in the child's presence cursed the child's stepfather. There was also evidence that the mother was a good parent; that the child's new house in Mississippi was *1326 "nice" and was within approximately a two-hour drive from Hamilton, Alabama, where his grandparents and the father lived; that the child made new friends easily; that the child's new school in Mississippi had personnel trained to help him with his attention deficit disorder; that the work schedules of the mother and the stepfather were such that the child would not be left alone; and that (according to the testimony of the mother's father, who had visited the child in Mississippi) the child was adjusting well in Mississippi and was happier than he had been in years.
Neither the Court of Civil Appeals nor this Court is allowed to reweigh the evidence in this case. This case, like all disputed custody cases, turns on the trial court's perception of the evidence. The trial court is in the better position to evaluate the credibility of the witnesses (at one point in its opinion the Court of Civil Appeals stated that witness Susan Brown was the only "impartial witness" with respect to the question whether the child's behavior and ability to concentrate had improved on medication; 676 So.2d at 1320-1321) and the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody. As previously noted, we assume that the trial court found that a change of custody would not materially promote the child's welfare. Based on our review of the evidence, we must conclude that that finding was not clearly erroneous.
For the foregoing reasons, the judgment of the Court of Civil Appeals is reversed and the case is remanded for an order or proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, INGRAM, and BUTTS, JJ., concur.
COOK, J., concurs in the result.
[1] The agreement provided in pertinent part as follows:
"[T]he parties shall have joint custody of the minor child ..., with physical custody to be vested with the wife."
The agreement went on to set out the father's visitation rights.
[2] Judges Thigpen and Crawley concurred in the result only, stating that they would remand the case with instructions for the trial court to reexamine the evidence in light of the "proper standard."
[3] This Court in Ex parte Couch indicated that the policy considerations of the more stringent McLendon standard might become applicable where, even though there has been no judicial determination preferring one parent over another, the parents through some kind of informal arrangement have placed with one parent the primary care of the child. However, this Court did not mean to suggest in Ex parte Couch that the reverse could occurthat the McLendon standard might have to give way to the "best interest of the child" standard where there has been a judicial determination preferring one parent over the other, but the parents have worked out an informal arrangement to share custody. All things otherwise being equal as between the parents, a judicial determination preferring one parent over the other requires the use of the McLendon standard. | March 8, 1996 |
8007fb07-d004-43f3-bd7b-8c05c10e1053 | Money Tree, Inc. v. Moore | 677 So. 2d 1170 | 1941914 | Alabama | Alabama Supreme Court | 677 So. 2d 1170 (1996)
The MONEY TREE, INC.
v.
Diana MOORE.
1941914.
Supreme Court of Alabama.
March 22, 1996.
Rehearing Denied May 17, 1996.
Charles R. Driggars and G.M. Neal, Jr. of Sirote & Permutt, P.C., Birmingham, for Appellant.
William L. Utsey of Utsey, Christopher & Newton, Butler, for Appellee.
Jack Drake of Drake & Pierce, Tuscaloosa, and Bruce McKee of Hare, Wynn, Newell & Newton, Birmingham, for Amicus Curiae Alabama Trial Lawyers Association.
SHORES, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R.App.P.
ALMON, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur specially.
HOOPER, Chief Justice (concurring specially).
Diana Moore sued The Money Tree on April 14, 1993. Her action was based on two loans made to her by The Money Tree and insurance policies sold to her when the loans were made. Moore alleges that The Money Tree acted to deny her benefits that were due under the terms of the insurance policies. The Money Tree entered into four contracts with Moore to lend her money; two of those contracts predated this lawsuit, and two of them were entered after Moore had filed this action. The first two loan agreements contained no arbitration clauses; however, the third and fourth, dated December 24, 1993, and May 9, 1994, contained clauses setting out a predispute agreement to arbitrate controversies arising out of the contracts. Thus, the two contracts that were the subject of this action did not contain arbitration clauses, and as to them the Money Tree had no right to compel arbitration.
Throughout 1993, Moore filed deposition notices and documents relating to other forms of discovery that required responses by The Money Tree. After December 24, 1993, The Money Tree, aware of the state of arbitration law in Alabama at that time, decided not to seek an order compelling arbitration. Before the release on January 18, 1995, of the United States Supreme Court's decision in Allied-Bruce Terminix Companies v. Dobson, ___ U.S. ___, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995), Alabama courts followed the rule that a predispute agreement to arbitrate was enforceable only if both parties to the underlying contract had, at the time they entered it, contemplated substantial interstate activity in its performance. The Money Tree thought that a motion to compel arbitration would be unsuccessful and that to file such a motion would lead to wasted time and expense. The Money Tree did not file such a motion until Alabama law changed with the United States Supreme Court's decision in Allied-Bruce Terminix.
The Money Tree moved on March 29, 1995, to compel arbitration. The court denied its motion on August 31, 1995, based on the plaintiff's objection that by not filing its motion earlier and by participating in the litigation process, The Money Tree had waived the right to compel arbitration. The Money Tree appealed.
The standard for determining whether a party has waived the right to compel arbitration is whether the party seeking to compel arbitration has substantially participated in litigation to a point that indicates an intent inconsistent with an intent to arbitrate and whether this participation has caused prejudice to the opposing party. Morewitz v. West of England Ship Owners Mutual Protection & Indemnity Association, 62 F.3d 1356 (11th Cir.1995). The record indicates that The Money Tree had delayed only because Alabama law barred enforcement of predispute agreements to arbitrate in cases like this one. When Alabama law was *1171 changed by the United States Supreme Court, The Money Tree acted promptly to seek arbitration. The Money Tree, therefore, did not act in such a way as to waive the right to seek arbitration.
The contracts at issue in this case contained no agreement to arbitrate. Therefore, the trial court properly denied The Money Tree's motion to compel arbitration, although its denial should not have been based upon the waiver of the right to seek arbitration.
HOUSTON, Justice (concurring specially).
The Federal Arbitration Act, 9 U.S.C. § 2, provides that the Act applies to a "written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ...." (Emphasis added.)
Moore's claim against The Money Tree did not arise after those parties had entered into agreements to settle controversies by arbitration, but before. Moore's action had been filed before she entered into the agreements with The Money Tree that contained the predispute agreements to arbitrate. Therefore, in my opinion, after considering de novo The Money Tree's motion to stay judicial proceedings and to compel arbitration, I agree that the trial court properly denied that motion.
HOOPER, C.J., and MADDOX, J., concur. | March 22, 1996 |
558afb44-04b4-4317-b440-a92418ea5ccc | Franks v. Norfolk Southern Ry. Co. | 679 So. 2d 214 | 1941713 | Alabama | Alabama Supreme Court | 679 So. 2d 214 (1996)
Steve FRANKS, as administrator ad litem of the Estate of Georgia Franks, deceased
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.
1941713.
Supreme Court of Alabama.
April 26, 1996.
*215 Leila H. Watson and Charles R. Crowder of Cory, Watson, Crowder & Petway, P.C. and David Cromwell Johnson, Birmingham, for Appellant.
David K. Howard of Jester, Howard & Jenkins, Florence, for Appellees.
BUTTS, Justice.
Steve Franks, as administrator ad litem of the estate of Georgia Delaine Franks, deceased, appeals from a dismissal of the wrongful death action he filed after the death of his sister-in-law, Georgia Franks. Mrs. Franks was struck and killed by a train on October 1, 1988, and her husband, Roger Franks, was seriously injured in the same accident. Steve Franks, Roger's brother, is also the conservator for Roger Franks, who is nonfunctional as a result of the accident. For a synopsis of the facts of the accident, see this Court's opinion in Franks v. Norfolk Southern Corp., 646 So. 2d 578 (Ala.1994).
The Colbert County Probate Court appointed Danny L. Borden, Georgia Franks's brother, as administrator of her estate on August 29, 1990; however, the record indicates that Borden did not plan to file a wrongful death action.[1] Therefore, on September 27, 1990, the probate court appointed Steve Franks administrator ad litem for the purpose of filing a wrongful death action based on the death of Georgia Franks; that appointment had the effect of removing from Danny Borden, as administrator, the privilege of filing a wrongful death action. Immediately upon his appointment, Steve Franks sued Norfolk Southern Corporation,[2] Charlie Beckwith, Nathaniel Burt, and Jimmy Larimore (hereinafter collectively referred to as "Norfolk Southern"), seeking wrongful death damages based on the death of Georgia Franks and seeking damages for personal injuries suffered by Roger Franks. He alleged that Norfolk Southern had acted negligently and wantonly and had thereby caused the injuries and death.
On October 29, 1990, Norfolk Southern filed the first motion to dismiss, which is at issue in this appeal. In that motion, Norfolk Southern stated, "Steve Franks, as administrator ad litem of the Estate of Georgia Delaine Franks, deceased, is not the proper party to bring [this] lawsuit." After hearing arguments, the trial court overruled the motion and ordered Norfolk Southern to answer the complaint.
Discovery proceeded and Norfolk Southern filed its first motion for a summary judgment. That summary judgment motion made no argument that Steve Franks was not the proper party to bring this lawsuit. The trial court entered a summary judgment for Norfolk Southern, holding that no genuine issue of material fact existed; this Court reversed that summary judgment, see Franks, supra, 646 So. 2d 578, and the case *216 was set for trial on May 15, 1995. On the morning of May 15, Norfolk Southern filed a second motion to dismiss or, in the alternative, for a summary judgment, claiming that "Steve Franks is not the proper party to have brought the lawsuit for the wrongful death of Georgia Delaine Franks and that action is therefore a nullity and should be dismissed...." After a hearing, the trial court reversed its earlier ruling, dismissed the action, and, in its order, stated that the appointment of Steve Franks as administrator was void and that the action was a nullity because (1) the action had not been brought by the proper party, (2) there was no relation back, and (3) the statutory limitations period had run.
On appeal, Steve Franks argues (1) that the circuit court did not have jurisdiction to consider a collateral attack on the order of the probate court appointing him as administrator ad litem, (2) that his appointment as administrator ad litem was proper and, therefore, authorized him to bring the wrongful death action, and (3) that it was prejudicial and unfair for Norfolk Southern to file on the morning of trial a second motion based on the same issue that had been ruled upon five years earlier.
The trial court's ruling on a motion to dismiss involves an application of law to the facts; therefore, the trial court's ruling is not entitled to a presumption of correctness. Allen v. Johnny Baker Hauling, Inc., 545 So. 2d 771 (Ala.Civ.App.1989). Thus, this Court must determine whether the trial court correctly applied the law to the facts in granting the motion to dismiss.
In Alabama, circuit courts have "a general superintendence" over the probate courts. Ala.Code 1975, § 12-11-30(4). Encompassed in this superintendence is the power to review certain judgments and orders of the probate court, either through direct appeal or by petition for an extraordinary writ. See Helms v. McCollum, 447 So. 2d 687 (Ala.1984). Sections 12-22-2 and 12-22-20, Ala.Code 1975, authorize appeals from final judgments of a probate court to either the circuit court or the Supreme Court.
This Court has held that an order appointing one petitioner as guardian of an infant and denying the petition of another was a "final" judgment or order of the court of probate and therefore would support an appeal under the predecessor of § 12-22-21. Loftin v. Carden, 203 Ala. 405, 83 So. 174 (1919). Roger Franks's situation is similar to that of an infantthe evidence indicates he is unable to care for himself, needs constant supervision, and is unable to handle his own affairs. Steve Franks is his conservator. Steve Franks was appointed administrator, instead of Danny Borden, for the purpose of bringing this wrongful death action. Therefore, the order of the probate court appointing Steve Franks was appealable to the circuit court.
An appeal from any probate judgment or order removing an executor or administrator must be taken within seven days of the issuance of the judgment or order. Ala.Code 1975, § 12-22-21(3). Borden was the administrator of the estate, and had the authority to file a wrongful death claim, until Steve Franks was appointed administrator ad litem for the purpose of bringing a wrongful death action. If, after the appointment of Steve Franks, Borden had wished to challenge the appointment, he should have appealed within seven days. He did not do so, and any appeal now would be too late.
The appellate jurisdiction of the circuit court can also be invoked by a petition for an extraordinary writ. Ala. Const. of 1901, amend. 328, § 6.04(b). Orders as to which no statute grants appellate jurisdiction are reviewed on petitions for writ of certiorari, mandamus, or prohibition. Town of Flat Creek v. Alabama By-Products Corp., 245 Ala. 528, 17 So. 2d 771 (1944). Borden has not challenged the appointment of Steve Franks by petition for an extraordinary writ, nor could any writ be issued, because the appointment of Steve Franks is within § 12-22-21(3), Ala Code 1975, which grants the circuit court appellate jurisdiction over this particular order of the probate court. By not filing a direct appeal from the probate *217 court's order, Borden forfeited his right to challenge that order.
After Steve Franks was appointed administrator ad litem for the purpose of filing a wrongful death action, neither Borden nor Norfolk Southern appealed. When this case was before this Court two years ago, Norfolk Southern failed to challenge the appointment of Steve Franks as administrator ad litem and, in that case, this Court referred to Steve Franks as the "administrator of the estate of Georgia Franks." Franks, 646 So. 2d at 579. Five years after the appointment of Steve Franks, Norfolk Southern filed a second motion to dismiss, although the trial court had already ruled on this issue and the parties and this Court had relied on that ruling. The trial court granted this second motion to dismiss, stating in its order:
As noted above in Section I, there are only two ways to invoke the circuit court's appellate jurisdiction over a probate court's orders. A motion to dismiss filed in the circuit court will not invoke its appellate jurisdiction over an order of the probate court. Thus, we must determine whether the circuit court's order granting Norfolk Southern's second motion to dismiss is an improper collateral ruling invalidating an order of the probate court.
The law distinguishes between a direct attack and a collateral attack on the order of another court. "A direct attack is an attempt to amend, correct, reform, vacate or enjoin the execution of that judgment in a proceeding instituted for that purpose, and... a collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted in an attempt to amend, correct, reform, vacate, or enjoin its execution." Randolph County v. Thompson, 502 So. 2d 357, 361-62 (Ala.1987). Norfolk Southern's second motion to dismiss sought to have the appointment of Steve Franks declared void as to the wrongful death case; he sought this in the circuit court case, not in the probate case. The circuit court reviewed the findings of the probate court, held that the probate order was not supported by sufficient evidence, and held it invalid. This is the type of review that the circuit court could perform on appeal but, as noted above, this order of the circuit court is not the result of an appeal. The probate court has jurisdiction over the granting of letters testamentary, over the revocation of such letters, and over all controversies relating to the right of administration. Ala.Code 1975, § 12-13-1(b)(2) and (3). In addition, orders of the probate court "shall be accorded the same validity and presumptions which are accorded to judgments and orders of other courts of general jurisdiction." Ala.Code 1975, § 12-13-1(c).
Meriwether v. Reynolds, 289 Ala. 361, 364, 267 So. 2d 434, 436 (1972). In order to prevent the order of the probate court from being collaterally assailed, Steve Franks must show that the probate court had jurisdiction to appoint an administrator ad litem. We hold that under the statute the probate court had jurisdiction to appoint Steve Franks. See Ala.Code 1975, § 43-2-250. Norfolk Southern argues that § 43-2-250 gives the circuit court exclusive jurisdiction over the appointment of an administrator ad litem for purposes of filing a wrongful death action. We disagree. The statute states:
The language of § 43-2-250 indicates that the legislature intended that any court, including the probate court, has the authority to appoint an administrator ad litem if the facts requiring one are established. Although the legislature has expressly granted exclusive jurisdiction to the circuit court in some specific areas, § 43-2-250 does not indicate that circuit courts are to have exclusive jurisdiction over the appointment of an administrator ad litem for the purpose of allowing a wrongful death case. Thus, we think the legislature intended for this statute to confer jurisdiction upon both probate courts and circuit courts over the appointment of administrators ad litem. We must reject Norfolk Southern's arguments regarding exclusive jurisdiction.
The second motion to dismiss filed in the wrongful death case sought to vacate the order of the probate court. In order to be a direct attack upon the probate court order, a motion would have to be filed in the probate court or else an appeal would have to be properly perfected as discussed in Section I, above. Therefore, we conclude that the motion to dismiss was a collateral attack on an order of the probate court and the dismissal cannot be upheld.
Norfolk Southern argues that Steve Franks could not meet all the requirements to justify his appointment as administrator ad litem. Because we have determined that Norfolk Southern was not a party to the probate proceedings and, thus, cannot attack the probate order, we pretermit discussion of this argument.[3]
The circuit court's appellate jurisdiction over the appointment of the administrator was not properly invoked, and we conclude that the second motion to dismiss was an improper collateral attack on that appointment. Therefore, we reverse the trial court's order dismissing this action and remand this case.
REVERSED AND REMANDED.
HOOPER, C.J., and ALMON, SHORES, KENNEDY, and COOK, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
A defendant in a civil action clearly has standing to challenge the capacity of the plaintiff to bring the action. Ex parte Izundu, 568 So. 2d 771 (Ala.1990); Smith v. Potts, 293 Ala. 419, 304 So. 2d 578 (1974).
The appointment of an administrator de bonis non, where there is no vacancy, is absolutely void and will be so held even in a collateral proceeding. Hickey v. Stallworth, 143 Ala. 535, 39 So. 267 (1905). An administration de bonis non is an "[a]dministration granted for the purpose of administering *219 such of the goods of a deceased person as were not administered by the former executor or administrator." Black's Law Dictionary 45 (6th ed. 1991).
Clearly, an administrator ad litem, who is appointed to represent the estate in a particular proceeding, is distinguishable from an administrator de bonis non, even though the administrator ad litem was unknown to our law before the enactment of Ala.Code 1975, § 43-2-250, and the appointment of such an administrator before that enactment would have been void. Ex parte Riley, 247 Ala. 242, 23 So. 2d 592 (1945). An administrator ad litem can be appointed when "there is no executor or administrator of [the] estate, or [the executor or administrator] is interested adversely thereto." Ala.Code 1975, § 43-2-250. Even though there was an administrator when Steve Franks was appointed, Steve Franks could have established that the existing administrator was not interested in pursing a wrongful death action against Norfolk Southern Railway Company. I agree with the majority that Norfolk Southern should not be permitted to attack Franks's appointment collaterally.
Therefore, for purposes of this special writing, I assume that Steve Franks is administrator ad litem of the estate of Georgia Delaine Franks, deceased, for the purpose of bringing a wrongful death action. Is he a proper party? Franks's action is brought under Ala.Code 1975, § 6-5-410, which provides, in pertinent part: "A personal representative may commence an action ... for the wrongful act, omission, or negligence of any person, persons, or corporation ... whereby the death of his testator or intestate was caused." Is an administrator ad litem a personal representative?
The defendant predicates a great deal of its argument on the nature of the Alabama wrongful death action. I shall not commence a discussion of this Court's interpretation of § 6-5-410, because I have filled too many pages of Southern Reporter over too long a time with my protestations. See Tatum v. Schering Corp., 523 So. 2d 1042 (Ala.1988) (Houston, J., dissenting), and Smith v. Schulte, [Ms. 1930362, August 18, 1995] 671 So. 2d 1334 (Ala.1995) (Houston, J., dissenting). Suffice it to say that, in my opinion, an administrator ad litem is a personal representative. A "representative" is "[a] person... that in some way corresponds to, stands for, replaces, or is equivalent to, another person." Black's Law Dictionary 1302 (6th ed. 1991). The adjective "personal" is defined as "[a]ppertaining to the person; belonging to an individual; limited to the person." Black's Law Dictionary 1143 (6th ed. 1991). Steve Franks stands for and replaces the deceased Georgia Franks in this action; clearly, he is a personal representative.
[1] Danny Borden candidly admits that his only interest in the estate was that his sister's funeral expense be taken care of. Borden had personally incurred debt in regard to his sister's funeral, and being reimbursed for this expense was his sole concern as the administrator of her estate. It appears that Borden had no interest in pursuing Roger Franks's interest in a wrongful death action.
[2] Through a series of amendments, this action became one against Norfolk Southern Railway Company.
[3] We note, however, that Norfolk Southern hired the lawyer who prepared the papers to have Borden appointed as administrator before Steve Franks was appointed. Norfolk Southern had an agreement with Borden to pay all legal bills incurred in the probate process. | April 26, 1996 |
8eeeb20e-1b92-4488-8c7f-a62d9e765d67 | Young v. La Quinta Inns, Inc. | 682 So. 2d 402 | 1950387 | Alabama | Alabama Supreme Court | 682 So. 2d 402 (1996)
Gaynell H. YOUNG
v.
LA QUINTA INNS, INC., and Ken Gay.
1950387.
Supreme Court of Alabama.
August 30, 1996.
*403 Chriss H. Doss and James W. Cameron of Chriss H. Doss & Associates, P.C., Birmingham, for appellant.
F. Chadwick Morriss and William H. Webster of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees.
KENNEDY, Justice.
In this personal injury case Gaynell H. Young sued La Quinta Inns, Inc., and its manager, Ken Gay (collectively "La Quinta"), on theories of negligence, following her fall on the premises of a La Quinta Inn located in Montgomery. Young appeals from a summary judgment in favor of La Quinta, arguing that there was a genuine issue of material fact that, she says, rendered the summary judgment improper.
Our review of a summary judgment is de novo, and in determining whether a summary judgment was proper we must view the evidence in a light most favorable to the nonmoving party. Hightower & Co. v. United States Fidelity & Guar. Co., 527 So. 2d 698 (Ala.1988).
A summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The party moving for the summary judgment, here La Quinta, has the burden of establishing a prima facie showing that there is no genuine issue of material fact. Berner v. Caldwell, 543 So. 2d 686 (Ala.1989). If the moving party makes such a showing, then the burden shifts to the nonmoving party to rebut that showing by presenting substantial evidence creating a genuine issue of material fact. Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
In the trial court, La Quinta argued that it was entitled to a judgment because the object that caused Young's fall, a concrete parking "bumper block," was not "hidden" *404 and should have been observed by Young. On appeal, La Quinta points to numerous factual matters favorable to it on this question. We, therefore, emphasize that in reviewing a summary judgment, we must view the evidence in a light most favorable to the nonmoving party, here, Young.[1]
The evidence, viewed most favorably to Young, indicates the following:
Young had parked in La Quinta's lot located on the east side of the Montgomery La Quinta Inn, in the front row's second space from the end nearest a back exit door. This space and adjacent parking spaces were separated from the La Quinta Inn by a curb and a sidewalk lying in front of the spaces. Also, the parking spaces had concrete "bumper blocks" at the front of them.
The first space, which Young parked next to, was narrower than the adjoining parking spaces, but the concrete bumper block at the head of it was approximately the same size as that used at the heads of the other parking spaces. As a result of the narrower width of the first parking space and the placement and size of its bumper block, that bumper block was not fully under the front of a vehicle parked in the first space and it was possible for that bumper block to protrude past the right front wheel of such a vehicle and into the area where a pedestrian might step off the sidewalk in front of the spaces and walk between the vehicle in the first space and a vehicle in the second space. The bumper block would protrude this way, as it did on the day of Young's fall, when a vehicle in the first space was parked nearer the curb, to its left, than to the second parking space, located to its right.
At the time of Young's fall, she was leaving the La Quinta Inn. She did not see the bumper block as she stepped off the sidewalk and into the parking area between a car parked in the first parking space and her car, parked in the second space. She was injured when she tripped over the protruding bumper block, which extended beyond the right front wheel of the car parked in the first parking spot.
The parties agree that at the time of her injuries, Young was a business invitee one who had come onto "the premises for some purpose that materially or commercially [benefits] the owner or occupier of the premises." Boyd v. Sears, Roebuck & Co., 642 So. 2d 949, 950 (Ala.1994). The duty owed by the owner or occupier of a premises is to protect an invitee from hidden defects that are unknown to the invitee and that would not be discovered by the exercise of ordinary care. Id. In this regard, the Court has indicated that even though a defect is open and obvious, an injured invitee is not barred from recovery where the invitee, acting reasonably, did not appreciate the danger of the defect. Furgerson v. Dresser Industries, Inc., 438 So. 2d 732 (Ala.1983). In Furgerson, the Court reversed a summary judgment for the defendant because there was an issue of material fact as to whether a reasonable person would have appreciated the danger of the "open and obvious" defect that the plaintiff invitee said caused her injury. See Owens v. National Sec. of Alabama, Inc., 454 So. 2d 1387 (Ala.1984) (discussing the import of Furgerson).
In Gable v. Shoney's, Inc., d/b/a Captain D's, 663 So. 2d 928 (Ala.1995), which also involved a fall over a parking lot bumper block, the Court upheld a summary judgment in favor of the defendant. The Court indicated that the evidence in that case pointed only to the fact that at the time of her fall the plaintiff, Gable, appreciated the danger posed by the open and obvious bumper block:
663 So. 2d at 928.
This case is different from Gable. There is no evidence that Young had previously been on La Quinta's premises and, accordingly, there is no suggestion that she had ever before parked in the area where she fell. Also, in Gable the Court indicated that on her way into the Captain D's restaurant, Gable had walked past the bumper block that she later fell over. Here, the record indicates that Young had not walked between her car and the car in the first parking space, past the area where the bumper block was located, until she was leaving the La Quinta Innthe time of her injury.
The evidence, taken most favorably to Young, indicates that the bumper block was positioned differently from the other bumper blocks in the parking lot and that Young was unaware that it protruded into the area between her car and the car in the first parking space. Although the record certainly contains evidence that could lead to an opposite inference, it contains legally adequate evidence to support the inference that, at the time of her fall, Young, acting reasonably, did not appreciate the danger caused by the placement of the bumper block.
The evidence indicates a genuine issue of material fact; therefore, the summary judgment was not proper. Accordingly, we reverse that judgment and remand this cause for a determination by the trier of fact.
REVERSED AND REMANDED.
HOOPER, C.J., and HOUSTON, COOK, and BUTTS, JJ., concur.
[1] Also, our review is limited to matters contained in the record. La Quinta relies extensively on an approximately 100-page deposition that is not a part of the record. Only 15 pages of excerpts, apparently from that deposition, are in the record, but these pages are not cited by La Quinta by any record citation consistent with the requirements of Ala.R.App.P. 28(e). | August 30, 1996 |
22a08557-1d4e-456d-9dc4-caa0976155f3 | Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston | 678 So. 2d 765 | 1940876, 1940919 | Alabama | Alabama Supreme Court | 678 So. 2d 765 (1996)
Donald F. PIERCE
v.
HAND, ARENDALL, BEDSOLE, GREAVES & JOHNSTON, a partnership.
HAND, ARENDALL, BEDSOLE, GREAVES & JOHNSTON, a partnership
v.
Donald F. PIERCE.
1940876, 1940919.
Supreme Court of Alabama.
May 10, 1996.
*766 James R. Pratt III of Hare, Wynn, Newell and Newton, Birmingham, Richard F. Ogle of Schoel, Ogle, Benton and Centeno, Birmingham, for appellant/cross appellee Donald F. Pierce.
A. Danner Frazer, Jr. of Frazer, Greene, Philpot & Upchurch, Mobile, for appellee/cross appellant Hand, Arendall, Bedsole, Greaves & Johnston.
SHORES, Justice.
This case involves a dispute between Donald F. Pierce and the law firm of Hand, Arendall, Bedsole, Greaves & Johnston ("Hand-Arendall"), of which Pierce was formerly a partner. After he withdrew from the firm, Pierce sued for a declaratory judgment, asking the court to define his rights to deferred compensation under Paragraph 13 of the partnership agreement. The trial court held that Pierce was not entitled to deferred compensation because, it held, Paragraph 13 was void. Pierce appealed; Hand-Arendall cross appealed, contending that DR 2-109, Alabama Code of Professional Responsibility, applicable when the contract was entered,[1] created an exception to the general prohibition against noncompetition covenants between professionals codified in § 8-1-1, Ala.Code 1975. We reverse and remand.
Pierce joined the Hand-Arendall firm in 1959 and became a partner on January 1, 1963. Pierce turned 60 on August 28, 1990. In December 1990 he announced his intention to withdraw from the firm effective December 26, 1990. He withdrew and began a new law firm under the name Pierce, Carr & Alford on January 1, 1991.
The Hand-Arendall partnership agreement was signed in 1977 and was amended *767 January 1, 1988. It contains as paragraph 13 the following provision:
Hand-Arendall paid Pierce $17,452.83 as payment for his depreciated capital account and $21,843.39 as his distribution of net profits. Pierce claimed deferred compensation benefits in the amount of $225,000, pursuant to Paragraphs 11 and 13 of the partnership agreement. Hand-Arendall denied Pierce those benefits, on the grounds that he had not discontinued the practice of law in the Mobile area and had thus violated the terms of the agreement.
Pierce sued for a declaratory judgment, contending that the obligation not to compete in the Mobile area was void under § 8-1-1, Ala.Code 1975, as against public policy, but that paragraph 13 was otherwise legal. After a nonjury trial, the judge held:
While there is a presumption of correctness for factual findings made by the trial court in a nonjury trial, there is no presumption of correctness for legal conclusions. Borland v. Sanders Lead Co., 369 So. 2d 523, 526 (Ala.1979). We first consider whether the trial court misapplied the law in holding that Paragraph 13 of the partnership agreement constitutes an impermissible restraint on Pierce's right to practice law and that Paragraph 13 is invalid in its entirety.
As the trial court correctly stated, "Alabama recognizes a strong public policy favoring a general prohibition against contracts which restrain one from exercising a lawful profession, and non-compete covenants are routinely declared invalid by our courts." Section 8-1-1(a) provides that "every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind other than is provided by this section is to that extent void." The trial court expressly found that the noncompetition language in Paragraph 13 creates a significant economic disincentive that impermissibly restrains Pierce's right to practice law.[2] We agree. However, it does not follow, as the trial court held, that the entirety of Paragraph 13 is thus void and unenforceable under § 8-1-1.
It is clear from the wording of the statute itself and from the holdings of this Court that under § 8-1-11(a) a noncompetition contract provision is only "void" only to "that extent" prohibited by § 8-1-1(a). Mann v. Cherry, Bekaert & Holland, 414 So. 2d 921, 924 (Ala.1982). The fact that a promise not to compete is included in a contract does not necessarily render void the entire contract. "The contract remains otherwise valid." Salisbury v. Semple, 565 So. 2d 234, 236 (Ala.1990), citing Mann v. *768 Cherry, Bekaert & Holland, supra. In Mann, this Court considered a contract for the purchase and sale of an accounting practice; the contract contained mutual noncompetition covenants. The purchaser stopped making payments to the seller after concluding that the covenants not to compete rendered the contract void. This Court held that the buyer, who had received all he had bargained for, should not be allowed to use the unenforceability of the noncompetition clause to avoid his contractual obligations. Mann at 925.
In the case of Friddle v. Raymond, 575 So. 2d 1038 (Ala.1991), two veterinarians entered into a buy-sell agreement that provided that Raymond, the seller, would not compete within six miles for three years. The agreement provided that if Raymond competed, he would forfeit the payments due him, treating the forfeiture as the payment of liquidated damages. This Court struck down the forfeiture provision as being an effort to circumvent the prohibitions of § 8-1-1(a). In the case before us, only the noncompetition provision in Paragraph 13 is void. The trial court misapplied the law in holding Paragraph 13 to be void in its entirety.
We next consider whether the trial court erred in holding that Pierce is equitably estopped from asserting his claim to deferred compensation under the partnership agreement. The purpose of the doctrine of equitable estoppel is to promote equity and justice in an individual case by preventing a party from asserting rights under a general rule of law when his own conduct renders the assertion of such rights contrary to equity and good conscience. Mazer v. Jackson Ins. Agency, 340 So. 2d 770 (Ala.1976). The party asserting the doctrine of equitable estoppel may not predicate his claim on his own dereliction of duty or wrongful conduct. Draughon v. General Finance Credit Corp., 362 So. 2d 880, 884 (Ala.1978).
This Court, in Mazer v. Jackson Ins. Agency, supra, set forth the basic elements necessary to support an equitable estoppel:
340 So. 2d at 773. See General Elec. Credit Corp. v. Strickland Div. of Rebel Lumber Co., 437 So. 2d 1240 (Ala.1983). The trial court failed to address these elements, although it cited Mazer as justification for its legal conclusion that Pierce was equitably estopped from recovering.
*769 This Court has carefully examined the record and finds it clear that the trial court did not correctly apply to the relevant facts the law of Alabama as it relates to the propriety of invoking the doctrine of equitable estoppel. The Hand-Arendall firm drafted the noncompetition provisions into the partnership agreement, which was signed by the parties in 1977. Thus, Hand-Arendall, the party asserting the doctrine of equitable estoppel, is predicating its claim on its own wrongful conduct. It is not permitted to do so. Draughon v. General Finance Credit Corp., supra. There is no evidence that there was any conduct on the part of Pierce amounting to a representation or a concealment of material facts or indicating that he knew of the invalidity of Paragraph 13 when he signed the partnership agreement in 1977. He was not a senior partner instrumental in drafting a restrictive agreement and imposing it on his fellow partners; he was merely one of 22 persons signing the agreement.[3] In fact, Pierce testified that at the time of the meetings with the other lawyers in October and November 1990 he still thought that Paragraph 13 was enforceable. Thus, the trial court erred in holding that Pierce was equitably estopped from asserting his rights under the partnership agreement.
We must then determine whether the trial court erred in concluding that Pierce was forbidden from seeking the deferred compensation, on the basis that he was in pari delicto, or equally culpable with Hand-Arendall in the creation of an illegal agreement. The trial court so held, acknowledging that Hand-Arendall had never raised the doctrine of in pari delicto, an affirmative defense, in its pleadings.[4] Instead, the trial court cited four cases that it said hold that the application of the doctrine of in pari delicto is "a matter peculiarly within the discretion of the trial court." We do not agree that those cases so hold. Rule 8(c), A.R.Civ.P., provides that any matter constituting an avoidance or affirmative defense must be pleaded in a timely manner or else it is deemed waived. Giles v. Ingrum, 583 So. 2d 1287 (Ala.1991). This Court has stated that the doctrine of in pari delicto is an affirmative defense. Boykin v. Magnolia Bay, Inc., 570 So. 2d 639 (Ala.1990); see also N. DeWayne Pope, "A Practitioner's Guide to Affirmative Defenses in Alabama," 57 Ala. Lawyer 86 (March 1996).
Finally, on its cross appeal, Hand-Arendall contends that DR 2-109, Alabama Code of Professional Responsibility, created an exception to the § 8-1-1 general prohibition of noncompetition covenants between professionals, and it contends that the trial court erred in holding that the partnership agreement does not truly concern retirement benefits in the manner contemplated by DR 2-109. DR 2-109(A) read, in pertinent part:
Does this disciplinary rule allow Hand-Arendall to escape payment of deferred compensation to this former partner? We reject the contention that it does so. First, as the trial court held, Paragraph 13 of the partnership agreement does not "truly concern retirement benefits in the manner contemplated" by DR 2-109(A); second, such a result would violate § 8-1-1, Ala.Code 1975.
While no Alabama precedent interprets similar noncompetition provisions in the context of DR 2-109, other jurisdictions have considered such economic-forfeiture-upon-competition provisions in the context of similar rules of professional conduct. Those jurisdictions, relying on a strong public policy against contracts that limit the right of professionals to compete, have prohibited law firms from relying on the forfeiture-upon-competition language of partnership agreements as an excuse not to pay deferred benefits such as those claimed in this case. Jacob v. Norris, McLaughlin & Marcus, 128 *770 N.J. 10, 607 A.2d 142 (1992); Cohen v. Lord, Day & Lord, 75 N.Y.2d 95, 551 N.Y.S.2d 157, 550 N.E.2d 410 (1989); Anderson v. Aspelmeier, 461 N.W.2d 598 (Iowa 1990); Spiegel v. Thomas, Mann & Smith, P.C., 811 S.W.2d 528 (Tenn.1991). The Supreme Court of New Jersey explained:
Jacob v. Norris, McLaughlin & Marcus, supra, 128 N.J. at 34, 607 A.2d at 155.
In Cohen v. Lord, Day & Lord, supra, the New York Court of Appeals rejected the argument that departure compensation was the same as "retirement benefits" and, therefore, within the exception of the disciplinary rule:
75 N.Y.2d at 100, 550 N.E.2d at 412, 551 N.Y.S.2d at 159.
Hand-Arendall cites Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, 790 P.2d 404 (1990), in which the Supreme Court of Kansas held valid a provision in a partnership agreement under which an attorney who retired could receive retirement benefits only if he stopped practicing law. Miller is distinguishable from the case before us, because Miller concerns true retirement benefits, not deferred compensation as in the case before us. Id., 246 Kan. at 457-59, 790 P.2d at 410.
We agree with the reasoning of the New York Court of Appeals, and we affirm the trial court's holding that Paragraph 13 of the partnership agreement does not concern retirements benefits in the manner contemplated by DR 2-109(A). There is sound logic for such reasoning. Under Alabama partnership law, unless a partnership agreement provides otherwise, the withdrawal of a partner constitutes a dissolution of the partnership. § 10-8-90 et seq., Ala.Code 1975. Partnership agreements, such as the agreement in this case, avoid the automatic dissolution of a firm upon the withdrawal of a partner, by fixing the amount of deferred compensation the partner will be allowed upon withdrawal. Otherwise, the partnership would automatically dissolve upon the withdrawal of the partner, and he or she would be entitled to an accounting for the amount of his or her interest in the dissolved partnership. Cohen, 75 N.Y.2d at 102-03, 550 N.E.2d at 414, 551 N.Y.S.2d at 160.
For the reasons stated above, we hold: 1) Paragraph 13 of the partnership agreement is void only to the extent of the agreement not to complete, and the remainder of Paragraph 13 is valid, 2) the noncompetition agreement of Paragraph 13 does not come within the exception allowed by DR 2-109 and 3) Hand-Arendall has a contractual obligation to pay deferred compensation to Pierce under the terms set forth in the partnership agreement. The judgment of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, ALMON, HOUSTON, COOK, and BUTTS, JJ., concur.
[1] The substance of DR 2-109 is now dealt with at Rule 5.6, Alabama Rules of Professional Conduct.
[2] Hand-Arendall attacks this holding in its cross-appeal.
[3] See the New Jersey Supreme Court's discussion of the fact that equitable principles might bar a plaintiff's recovery in such a case if the plaintiff had been a senior partner instrumental in drafting the restrictive agreement. Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 607 A.2d 142, 155 (1992).
[4] Footnote 8 to the trial court's order states this holding. | May 10, 1996 |
ae0c52ed-ac95-4a25-8729-cb0636c6d244 | Ranch House, Inc. v. City of Anniston | 678 So. 2d 745 | 1941524 | Alabama | Alabama Supreme Court | 678 So. 2d 745 (1996)
The RANCH HOUSE, INC., etc., et al.
v.
The CITY OF ANNISTON.
1941524.
Supreme Court of Alabama.
April 5, 1996.
Rehearing Denied June 14, 1996.
Steven H. Swander, Fort Worth, Texas, Cliff Callis, Gadsden, for Appellants.
George A. Monk of Merrill, Porch, Dillon & Fite, Anniston, for Appellee.
HOOPER, Chief Justice.
The Ranch House, Inc., and its president sued for a judgment declaring Ordinance No. 94-0-03 of the City of Anniston unconstitutional. That ordinance prohibits nudity or partial nudity in establishments in which alcoholic beverages are dispensed, sold, or consumed. The trial court entered a summary judgment for the City. The plaintiffs appealed.
In the mid-1980s, Anniston experienced new crime problems after two topless bars opened in the City. The police chief determined these new problems were related to the topless bars and that they occurred because topless dancing was being performed where alcohol was being sold or served. In response to the police chief's concerns, and after concluding that such an ordinance would be valid, the Anniston City Council in 1987 enacted Ordinance No. 87-0-41, as an amendment to Chapter 3.50, Anniston City Code.
That ordinance, as originally enacted, prohibited the use of nudity or partial nudity in entertainment in an establishment that "dispenses or otherwise allows the consumption of alcoholic beverages on the premises." The City states that the purpose of this ordinance was to prevent crime, not to restrict nude dancing.
On or about October 8, 1993, Ranch House began operating in Calhoun County, near the City of Anniston. The Alabama Alcoholic Beverage Control Board licensed Ranch *746 House to sell beer and wine. Ranch House began offering live entertainment that included female dancers performing nude or partially nude. On December 7, 1993, the City informed Harvey J. Bowman, president of Ranch House, that his business was operating within the Anniston police jurisdiction and that as of January 1, 1994, Ranch House would be required to comply with all applicable Anniston ordinances, including Ordinance No. 87-0-41. On January 1, 1994, Bowman was arrested for violating that ordinance. He was convicted in the Anniston Municipal Court; his appeal is now pending in the Calhoun Circuit Court.
Thereafter, Ranch House reconfigured the building in which it operated, so as to separate that area where beer and wine were sold from the area where partially nude or nude dancing was carried on. One could purchase beer or wine at the bar on one side of the building and carry it to the other side and consume it there while watching the dancing. The Anniston police chief notified the city attorney of the reconfiguration and advised the attorney that Bowman had discovered a loophole in the ordinance and that he thought the crime problems encountered by the City would continue if the loophole was not closed.
In January 1994, the city adopted ordinance No. 94-0-03 as an ordinance amending Ordinance No. 87-0-41. The new ordinance prohibits nudity or partial nudity in a business that sells or dispenses alcoholic beverages or allows the consumption of alcoholic beverages on its premises.
The plaintiffs then sued in the United States District Court for the Northern District of Alabama, seeking a judgment declaring that Ordinance No. 94-0-03 violated the free speech/expression guarantees of the United States and Alabama Constitutions. The district court denied preliminary injunctive relief based on the federal constitutional claims and declined jurisdiction over the state constitutional claims. Ranch House and Bowman voluntarily dismissed their federal action and filed this action for declaratory relief in the Calhoun County Circuit Court.
The issues of the case are: (1) Did the City of Anniston properly exercise its police power in enacting Ordinance No. 94-0-03? (2) Does Anniston Ordinance No. 94-0-03 violate the right to freedom guaranteed by § 4 of the Alabama Constitution?
This Court has addressed a municipality's police power involving a similar ordinance, in answering a certified question in Lanier v. City of Newton, 518 So. 2d 40 (Ala.1987). In Lanier, this Court upheld the ordinance. In that case, the United States Court of Appeals for the Eleventh Circuit certified to this Court questions regarding the validity of city ordinances that concerned attire in establishments serving alcoholic beverages. This Court held that the State of Alabama had delegated its regulatory powers under the 21st Amendment to municipalities to such an extent that it had enabled a municipality to pass an ordinance regulating the combining of alcohol and nudity in a business licensed to sell alcohol. This Court held that the City of Newton's ordinance prohibiting a female from exposing her breasts in an "establishment dealing in alcoholic beverages" did not violate the Alabama Constitution. Lanier, at 41.
Based on the holding of Lanier, we conclude that the City of Anniston has the authority to forbid a business from permitting the drinking of alcoholic beverages and nude dancing at the same time, in order to prevent crime.
Does Anniston Ordinance No. 94-0-03 violate § 4, of the Alabama Constitution?
Section 4 states:
This Court has held:
State v. Mills, 278 Ala. 188, 193-94, 176 So. 2d 884 (1965), rev'd on other grounds, 384 U.S. 214, 86 S. Ct. 1434, 16 L. Ed. 2d 484 (1966). *747 See also, Barton v. City of Bessemer, 234 Ala. 20, 173 So. 626 (1937). Thus, this Court has recognized only a limited power on the part of the State to enact laws restricting the freedom of speech.
The Anniston ordinance regulates conduct; it is not directed at speech or expression. This Court held in Lanier v. City of Newton that a municipality could enact an ordinance prohibiting a "female person" from "expos[ing] to public view any portion of her breasts below the top of the areola" in "an establishment dealing in alcoholic beverages." Lanier, 518 So. 2d at 42. We conclude that the Anniston ordinance prohibiting nudity or partial nudity in establishments at which alcoholic beverages are dispensed, sold, or consumed does not violate § 4 of the Alabama Constitution.
AFFIRMED.
MADDOX, SHORES, HOUSTON, and KENNEDY, JJ., concur.
ALMON, INGRAM, COOK, and BUTTS, JJ., concur in the result.
COOK, Justice (concurring in the result).
I concur in the majority's conclusion that the City of Anniston's Ordinance No. 94-0-03 does not violate rights guaranteed by Ala. Const.1901, § 4. That section provides: "[N]o law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty." I write, however, to point out that the ordinance does not, in fact or effect, regulate conduct to which § 4 applies.
The effect of the ordinance is best illustrated by a comparison of the activities permitted with the activities prohibited. Specifically, the ordinance permits performances by topless females. It permits spectators to view these performances while sober, or even while under the influence of alcoholas long as the alcohol was consumed at another location. The ordinance prohibits only the purchase or consumption of alcohol in the immediate presence of the dancers or in an area immediately adjacent to the area where the dancers are located. Thus, the ordinance regulates the activities of spectators, or potential spectators, not activities of the dancers themselves.
Section 4 of the Constitution of Alabama does not guarantee citizens the right to purchase or consume alcohol. Thus, it does not guarantee them the right to view performances by topless or nude females with alcohol in, or at, hand. Because this case involves no right with which § 4 is concerned, I concur in the result.
INGRAM, J., concurs. | April 5, 1996 |
9b51c505-45e8-4b17-ac2d-dad0fed108c9 | Ex Parte Wooten | 681 So. 2d 149 | 1941859 | Alabama | Alabama Supreme Court | 681 So. 2d 149 (1996)
Ex parte Mozelle WOOTEN.
(Re Mozelle WOOTEN v. HOUSTON COUNTY HEALTH CARE AUTHORITY, d/b/a Southeast Alabama Medical Center).
1941859.
Supreme Court of Alabama.
June 21, 1996.
*150 Ron Storey, Dothan, for Petitioner.
Fred W. Tyson, William S. Haynes and N. Wayne Simms, Jr. of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Respondent.
Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, and Jack Drake of Drake and Pierce, Tuscaloosa, for Amicus Curiae Alabama Trial Lawyers Association, in support of Mozelle Wooten.
SHORES, Justice.
The opinion released February 2, 1996, is withdrawn and the following opinion is substituted therefor.
This trip-and-fall case presents the question whether a hospital visitor is an invitee or is a licensee under the Alabama law of premises liability. The plaintiff, Mozelle Wooten, fell off a curb and was injured in the parking lot of a hospital operated by the defendant and known as the Southeast Alabama Medical Center (SEAMC), while walking toward the hospital to visit her brother, who was a patient there. She sued the authority that operated SEAMC. The trial court entered a summary judgment for the defendant, on the grounds that as a hospital visitor, the plaintiff was, as a matter of law, a licensee, not an invitee. The plaintiff appealed.
The Court of Civil Appeals affirmed, citing Hambright v. First Baptist Church-Eastwood, 638 So. 2d 865 (Ala.1994). The Court of Civil Appeals stated:
Wooten v. Houston County Health Care Authority, 681 So. 2d 147 (Ala.Civ.App.1995). We granted the plaintiff's petition for certiorari review. We cannot agree that Hambright supports the summary judgment in this case. Hambright concerned church premises, not hospital premises, and our opinion in that case did not cite, nor did it overrule, any of our established hospital cases. It merely reiterated our established holdings that a person attending a church service is a licensee on the church premises. Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So. 2d 469 (1969); Cagle v. Johnson, 612 So. 2d 1158 (Ala.1992).
This Court has long held that a person on hospital premises for the purpose of visiting a patient is an invitee. See: Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443 (1932); Baptist Medical Center v. Byars, 289 Ala. 713, 271 So. 2d 847 (1972); Collum v. Jackson Hospital & Clinic, Inc., 374 So. 2d 314 (Ala.1979). Hospital visitors are held to be invitees in the majority of those jurisdictions that retain the common law system of classifying licensees, invitees, and trespassers. That majority includes, in addition to Alabama, Arizona, Borota v. University Medical Center, 176 Ariz. 394, 861 *151 P.2d 679 (Ariz.App.1993); Florida, St. Vincent's Hospital, Inc. v. Crouch, 292 So. 2d 405 (Fla.Dist.Ct.App.), cert. denied, 300 So. 2d 897 (Fla.1974); Georgia, Candler General Hospital, Inc. v. Purvis, 123 Ga.App. 334, 181 S.E.2d 77 (1971); Kansas, Gaitskill v. United States, 129 F. Supp. 621 (D.Kan.1955); Kentucky, Mackey v. Allen, 396 S.W.2d 55 (Ky. 1965); Illinois, McCann v. Bethesda Hospital, 80 Ill.App.3d 544, 35 Ill.Dec. 879, 400 N.E.2d 16 (1979); Indiana, Lutheran Hospital of Indiana, Inc. v. Blaser, 634 N.E.2d 864 (Ind.App.1994); Louisiana, Viosca v. Touro Infirmary, 170 So. 2d 222, 224 (La.App.1964), cert. denied, 247 La. 416, 171 So. 2d 668 (1965); Maryland, Burwell v. Easton Memorial Hospital, 83 Md.App. 684, 577 A.2d 394 (1990); Minnesota, Sulack v. Charles T. Miller Hospital, 282 Minn. 395, 165 N.W.2d 207 (1969); Missouri, Willis v. Springfield Osteopathic Hospital, 804 S.W.2d 416 (Mo.App. 1991); Nebraska, Syas v. Nebraska Methodist Hospital Foundation, 209 Neb. 201, 307 N.W.2d 112 (1981); New York, Lesyk v. Park Avenue Hospital, Inc., 29 A.D.2d 1043, 289 N.Y.S.2d 873 (1968); North Carolina, Pulley v. Rex Hospital, 326 N.C. 701, 392 S.E.2d 380 (1990); Ohio, Stinson v. Cleveland Clinic Foundation, 37 Ohio App.3d 146, 524 N.E.2d 898 (1987); Oklahoma, Sutherland v. Saint Francis Hospital, Inc., 595 P.2d 780 (Okla.1979); Oregon, Anderson v. Oregon City Hospital Co., 214 Or. 212, 328 P.2d 769 (1958); South Carolina, Henderson v. St. Francis Community Hospital, 303 S.C. 177, 399 S.E.2d 767 (1990); South Dakota, Small v. McKennan Hospital, 437 N.W.2d 194 (S.D.1989); Texas, Gunn v. Harris Methodist Affiliated Hospitals, 887 S.W.2d 248 (Tex.App.1994); Virginia, Medical Center Hospitals v. Sharpless, 229 Va. 496, 331 S.E.2d 405 (1985); and the District of Columbia, Person v. Children's Hospital National Medical Center, 562 A.2d 648 (D.C.App. 1989). A legal encyclopedia notes:
40 Am.Jur.2d Hospitals and Asylums, § 35, p. 876 (1968).
For the reasons stated above, we conclude that the Court of Civil Appeals erred in affirming the trial court's conclusion that Mozelle Wooten was, as a matter of law, a licensee, not an invitee. However, the Court of Civil Appeals properly held: "[F]urther, [SEAMC] made a prima facie showing that it had not in any way acted negligently. Wooten did not rebut this prima facie showing with substantial evidence." 681 So. 2d at 149. The record substantiates the conclusion by the Court of Civil Appeals that the summary judgment in favor of SEAMC should be affirmed.
APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., concurs specially.
MADDOX, J., concurs in the result.
HOOPER, Chief Justice (concurring).
I concur in the affirmance. However, I disagree with the majority's statement that this Court has long held that a person on hospital premises for the purpose of visiting a patient is an invitee. The case law cited does not support this proposition. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443 (1932), did not address the question whether the plaintiff was an invitee or a licensee. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So. 2d 847 (1972), had as the plaintiff a private duty nurse who had come to the hospital to attend a patient she had been hired to attend. Collum v. Jackson Hospital & Clinic, Inc., 374 So. 2d 314 (Ala.1979), involved a plaintiff who had gone to a hospital to see a doctor. I was the trial judge in the Collum case; it did not involve a nonbusiness visitor. The question whether a nonbusiness social visitor to a hospital is an invitee has not been heretofore answered by this Court.
The Court of Civil Appeals affirmed the defendant's summary judgment, relying on Hambright v. First Baptist Church-Eastwood, *152 638 So. 2d 865 (Ala.1994). That case held that a visitor to a church was not an invitee, because the visitor had not come to bestow a material benefit upon the church. However, the holding of Hambright did not turn on the fact that the visitor was on church premises but on the fact that the visitor was there for a social visit and not to bestow a material benefit on the church. Mozelle Wooten, the plaintiff in the present case, went to the hospital to visit her brother. A hospital expects to regularly receive visitors like Ms. Wooten, just as a business expects to regularly receive customers. A patient is a customer of a hospital and will regularly receive visitors. It is not unreasonable to expect a hospital to provide a reasonably safe premises for a patient's expected visitors. The Court should straightforwardly and clearly acknowledge that it is establishing today for the first time that a visitor coming to a hospital for a social visit with a patient is an invitee. | June 21, 1996 |
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